§ Lords amendments considered.
§ Clause 1
§ CLOSURE OF FOOD PREMISES, STALLS OR VEHICLES DANGEROUS TO HEALTH
§ Lords amendment: No. 1, in page 1, line 13, leave out "or vehicle" and insert", vehicle or place"
§ 12.3 p.m.
§ Mr. George Younger (Ayr)
I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Speaker
With this we may also consider Lords Amendment No. 2 and Lords Amendments Nos. 4 to 15 inclusive.
§ Mr. Richard Body (Holland with Boston)
Will it be possible, Mr. Speaker, to have separate votes on certain amendments? Some of my hon. Friends and I object to some of the amendments.
§ Mr. Younger
These amendments, which are all very closely related, have two simple purposes. The first is to clarify that the activities of food businesses carried on at places other than on actual premises, vehicles or stores—such as, for example, pavement cafes—are also covered by the major provisions of Clauses 1 and 2. The second purpose is to put beyond all doubt that the Bill extends to the transportation of food as part of a food business.
§ Mr. William Hamilton (Fife, Central)
I have no wish to delay the passage of the Bill, but I am sure that the hon. Member for Ayr (Mr. Younger) will agree that it is as well to put on record that the Bill has reached this stage with virtually no discussion on it in this House. I hope that the hon. Gentleman will not think it amiss if we seek explanations for various parts of the Bill.
This series of amendments was proposed in the other place. I must put on record that the Committee stage in this 1009 House went through in two minutes flat. I am sure that the hon. Member for Ayr recognises that this is a fairly considerable Bill containing eight clauses. I think that many hon. Members refuse to believe that any Bill is as perfect and as non-controversial as a two-minute Committee stage would seem to suggest.
The House of Lords took a much more conscientious view of its responsibilities than the House of Commons, and the Second Reading there took eight minutes, which seems like a filibuster in comparison with what took place in Standing Committee. Consideration of amendments that were suggested in Committee took a whole hour, and another 40 minutes was taken by later stages. The result is the string of amendments that the hon. Member for Ayr has invited the House to accept.
The purpose of the amendments is clearly not to weaken the Bill in any way but to strengthen it by remedying some defects. I want to ask—possibly at a later stage—certain questions about other aspects of the Bill concerning which questions were asked in another place, to which no satisfactory answer has been given. It is important that this House should get the Bill right, because this is the last opportunity for doing so.
The hon. Member for Ayr has referred to clauses that apply to vehicles. In the other place the Minister said that reference to a food business included the transportation of foods, and he also suggested that questions of insanitary and dirty vehicles transporting food were covered by Regulation 30(1) as amended by the 1966 amending regulations. Will the hon. Member for Ayr assure us that that is the case?
Whether we like it or not, there is a general impression that in mobile vehicles —which by definition are mobile —the serving of insanitary food is proportionately more dangerous than in static canteens, or whatever. There may not be any justification for that fear but the fear is genuinely felt. Moreover, it is more difficult to control insanitary conditions if a vehicle is travelling from one place to another. This makes it extremely difficult for the authorities or the courts to exercise the same control over it as if the vehicle was static.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
While discussing the difference in the comparative risks of static and mobile places, will the hon. Member for Fife, Central (Mr. Hamilton) address his mind to whether it is possible to have premises of which, in the terms of this Bill,the condition, situation or construction …is such that food is exposed to the risk of contamination"?I have never been able to see any premises that are not exposed to the risk of contamination.
§ Mr. Hamilton
The hon. and learned Gentleman makes a fair point, and I hope that the sponsor of the Bill will meet it. It is no obligation of mine to answer cross-examining questions by a legal luminary. That is the duty of the sponsor, who is well-qualified and obviously well-briefed on these abtruse matters. I am sure that he will give a very satisfactory answer to the hon. and learned Gentleman, who, I hope, will follow up that question with more such questions in due course.
The hon. Member for Ayr is performing an extremely useful service to the House and Scotland, because the eating of hygienic food, wherever it is done, is extremely civilised and satisfying. I hope that the Bill will make some contribution to that.
§ Mr. Body
It is right that we should probe the amendments rather more fully than some of us had at first thought necessary. My first objection is to the insertion of the word "place", because we are at risk of putting sloppy draftsmanship on the statute book.
There was a time when "place" never entered a statute. The reasons are obvious. The Oxford Dictionary contains page after page of definitions of "place". Anyone who has sought to earn his livelihood in the courts defending or prosecuting those thought to be guilty of the kind of offence dealt with in the Bill—I have done both, as no doubt my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) has—knows what a feast of work sloppy legislation can provide. It means not only that lawyers can spend two or three hours in a magistrates' court and then the quarter sessions, or whatever is the equivalent in Scotland, arguing about what a "place" is, but that before any 1011 prosecution is brought those who run businesses are anxious whether they are within the four corners of the law.
Perhaps more important, the use of the word puts a great burden on those responsible for public health, on those officials in local authorities who may not be legally qualified but who have the difficult task of trying to intercept the law. Therefore, it is essential that Bills such as this contain words that are precise, that admit of only one or two meanings, with the result that those responsible for interpreting, administering and enforcing the law have fewer difficulties than the Bill is likely to provide.
§ Mr. Marcus Lipton (Lambeth, Central)
The hon. Gentleman has said that in the Oxford Dictionary "place" has many definitions, and I accept that. Does it contain any definition of "place" as a vehicle?
§ Mr. Body
I regret to have to inform the hon. Gentleman that a vehicle can be a place, according to certain statutes.
My first submission is that with the inclusion of the word the Bill will be a sloppy piece of legislation. I do not want to be critical of the original draftsman. On the contrary, the Bill was perfectly all right when it began, when it passed through this House and when it reached the Committee stage in the other place. I do not know what happened to their Lordships on Report. They got their teeth into the Bill and went berserk, deciding at that late stage to insert "place" where it should not be.
The noble Lord who moved the amendment had to think of some kind of place that might be brought within the scope of the Bill, and he spoke of a pavement cafe. That was the only example he could think of. But a pavement cafe is either public or private property. If it is public property, the local authority has all the powers needed to effect a closure order and prevent its operating, if any official suggests that the tables, chairs or whatever may be on the pavement are dirty and unhygienic. If it be private property, it is essentially part of the premises.
I think that the argument used in the other place was that inserting "place" would sweep in all the other activities 1012 that could not be included under "premises, stall or vehicle". The other place should think again about whether one can eat or prepare any food, or do anything with food, other than in "premises, stall or vehicle".
The Bill should be four-square with the regulations. The purpose is to give teeth to the existing regulations, to prevent dirty food from being sold in shops, restaurants and elsewhere in Scotland. The whole purpose is to make sure that the consumer is protected, but only in accordance with the existing regulations, which are set out very clearly and do not use the word "place". They do not have to. They use the words "premises", "vehicles" and "stalls
Before it blithely allows this sloppy draftsmanship to go through, the House should ask those responsible for agreeing to the proposal from the other place to say exactly why it is necessary. No doubt the Under-Secretary of State for Scotland has instructions on the matter and has given it careful thought. It is imperative that we hear clearly from him and those who advise him why it is necessary for "place" to be included and to jiggle around with the regulations, which are perfectly clear.
Regulation 30(1), which is of particular importance in this context, says:Every stall or vehicle which is used in the course of or for the purpose of a food business shall be kept clean and be of such construction and in such order, repair and condition as will enable it to be effectively cleaned, and the lay-out of any such stall or vehicle shall be such as will enable operations conducted therein for the purposes of food premises to be conducted hygienically.
§ Mr. Ian Mikardo (Bethnal Green and Bow)
I shall be most grateful if the hon. Gentleman can give me a bit of information, because I am not a lawyer and I am a bit out of my depth in these matters. I like to look at legislation through the eyes of one who asks "What does it mean to an ordinary chap?" The hon. Gentleman quoted a regulation. Does that include any definition of "stall", or does the statute under which the regulation is made include such a definition? Is there a legal definition of "stall" in any statute?
§ Mr. Body
It will be my argument that the existing definitions are adequate and 1013 that we do not need to add "place", which one does not normally find in the statute book. We, are guilty of sloppy work if we slot this word into the legislation, and for that reason it is objectionable.
The regulation is perfectly clear. This Bill will be quite a severe measure, and it will mean that a closure order may be made, quite properly, on premises that are unhygienic. The Bill gives the sheriff greater power and we should all be a little apprehensive about that. While it may be perfectly correct for magistrates or sheriffs in Scotland to close premises that have been condemned as unhygienic, what this Bill does also is to permit an interim order to be made to enable the premises to be closed before the shopkeeper or restaurateur has been convicted of an offence.
The shopkeeper may be innocent of having unhygienic premises or a dirty stall. Therefore, the Bill gives the sheriff very considerable power—the power to bring to an end what may be a very small or modest business, to put a man out of action and prevent him from earning his livelihood until his case is heard. When it is heard he may be proved not guilty, but his premises will have been closed down.
§ Mr. Gerry Fowler (The Wrekin)
The hon. Member is being very moderate in concentrating on the sloppy use of this word "place". He is suggesting that someone may be put out of business by this interim procedure. If he looks at Lords Amendment No. 3 he will see that it alters the Bill to read:The state or situation of the premises, stall or vehicle".What on earth is the point in putting in the situation of the vehicle? Does this mean that if a vehicle is on a particular spot at a particular time a man can be put out of business for three months, even though his vehicle may not remain in that place?
§ Mr. Roger Moate (Faversham)
When my hon. Friend refers to Lords Amend- 1014 ment No. 3 and the word situation "does he not realise that this is not grouped for debate with these amendments? We shall be coming to that at a later stage.
§ Mr. Speaker
I am much obliged to the hon. Member for Faversham (Mr. Moate), and I hope that the hon. Member for Holland and Boston (Mr. Body) will bear that point in mind.
§ Mr. Fairbairn
If my hon. Friend looks at Clause 2(4) he will see that, although the procurator fiscal can apply to the court for an order if a complaint has been served in respect of a criminal offence, under subsection (4) if that order is given by the sheriff, who is a judge, it can be lifted for some extraordinary reason by a local authority, which has no judicial function of any kind. Therefore, if under Clause 2(4) a person who wishes to carry on makes an application about premises on which a sheriff has put a closing order, the local authority can say "Yah boo to you, sheriff." That seems a very odd procedure.
§ Mr. Body
Yes, it is indeed. We must probe this point later on. It is an absolute nonsense and my hon. and learned Friend is right to draw attention to it. I suppose the excuse forthcoming will be that, as local authorities would be responsible for the prosecution, it is unlikely than an interim closure order would be made unless the local authority itself had instituted the proceedings.
What this clause comes to is that once the local authority has brought the case before the sheriff, the sheriff has made an interim order to close and the local authority then changes its mind, it could disregard what the sheriff has done and of its own accord could end the interim order. That seems most undesirable. The right thing would be to return to the sheriff and ask him to bring the order to an end.
That is yet another example of the unsatisfactory state of this Bill and another reason why we should be more detailed in our examination of it than 1015 has been suggested by my hon. Friend the Member for Ayr (Mr. Younger) when he moved these amendments with rather alarming speed. No doubt he will seek to catch your eye again, Mr. Speaker, and reply to these points. I hope that he will tell us why he finds it necessary to support these amendments, which were introduced somewhat belatedly in another place and which many of us believe to be quite unnecessary.
The phrase "premises" is quite enough. If we add "vehicles" and "stalls", that is all that is necessary and it is all that the regulations stipulate. If this is to be a good piece of legislation it should be four-square with the regulations and should not try to go beyond them in a way that means more work and trouble to my colleagues at the Bar.
§ Mr. Fairbairn
While my hon. Friend is having a discussion with the hon. Member for Bethnal Green and Bow (Mr. Mikardo) about my income, which I am perfectly willing to declare as an interest if hon. Members really want to know just how little it is, will he raise the important question of whether the Bill is going beyond the original statute? It is not on all fours with the original statute because it stipulates "stalls" and not "premises".
§ Mr. Body
I think my hon. Friend is looking at only one of the regulations. If he looks at the regulations as a whole he will find that "stalls", "vehicles" and "premises" are all included. The essential attack has been on premises rather than on vehicles or stalls when food and hygiene legislation has been introduced and enforced.
§ Mr. Moate
While my hon. Friend might be right in saying that the regulations include certain words that we are now discussing, is it right—and he seems 1016 to be implying that it is—to base a new piece of primary legislation on definitions of words contained in secondary legislation, namely, the regulations issued under the Act?
§ Mr. Body
That is a formidable argument and I cannot see how anyone can refute it. Perhaps my hon. Friend the Member for Ayr is now contemplating an answer as best he can. Perhaps he will need time and he may even have to take instructions. That again underlines how unwise it is to introduce legislation of this kind, which goes far beyond the regulations which have been in force and which have worked pretty well. Those who have to deal with such cases in the courts know what they are about when they argue about "stalls ', "vehicles" and "premises". They are three legal terms that have been defined over and over again. Therefore, one need not go into a magistrates' court armed with a whole host of volumes and waste a day arguing about what a stall is, because it is defined. "Stalls", "vehicles" and "premises" are defined.
§ 12.30 p.m.
§ Mr. Fairbairn
Before my hon. Friend collects all his volumes and goes into the magistrates' court with them, will he bear in mind that this matter cannot be raised in the magistrates' court, because there is no such court in Scotland? My hon. Friend would have to go into the sheriff court to obtain the same jurisdiction.
§ Mr. Body
I was speaking of my experience. Unfortunately, Scotland is to have the same kind of law in this respect. The procedures will be much the same. My hon. and learned Friend the Member for Kinross and West Perthshire will have to learn how we do things in this country and act accordingly, if perchance he ever stoops so low as to do this tiresome work, which no doubt he would have left behind him long ago.
I should like now to refer to some of the definitions of "premises". I submit that the word "premises", which is in the Bill, is sufficient and need not be improved upon by adding the word "places".
The first item of legislation to which I refer the House is the Radioactive Substances Act 1960. I do not know whether radioactive substances creeping into cafes 1017 might be a breach of these regulations. However, Section 19(1) of that legislation provides:'premises' includes any land, whether covered by building; or not, including any place underground and any land covered by water".The definition of "premises", according to that Act, is anywhere where one could possibly consume, manufacture, package, sell or do anything else with food.
§ Mr. Fairbairn
Has my hon. Friend the sufficient experience to tell us whether the consumption or sale of food under water is a. regular practice in Scotland?
§ Mr. William Hamilton
This is not a jocular matter. The hon. Gentleman knows that there are oil rigs in Scotland and that submersibles go down to examine the foundations. If the occupant of one of those submarines suffers food poisoning, would he be covered by this legislation?
§ Mr. Body
Yes, because I submit that a submarine would be defined as premises. The hon. Gentleman may be right. After all, if we find the Loch Ness monster, we may go under the loch to some submarine platform from which we shall be able to watch him and take our refreshment. We must guard against these possible eventualities. This definition of "premises" certainly is sufficient to show that water is material as premises can be under or above water.
Another piece of legislation in which the word "premises" is defined is the Private Places of Entertainment (Licensing) Act 1967. That Act is material to this legislation, and it is recent.
§ Mr. Mikardo
This point is tremendously apposite to that being made by the hon. Gentleman. Many licensed premises have two or three tables and a few chairs outside, so they are pavement licensed premises. If they are covered by "premises" and do not need 1018 "places", one may reasonably ask why that does not apply in this Bill as well.
§ Mr. Body
Indeed. I am grateful to the hon. Member for putting that point. I am on a bull's-eye with this one. The definition of "premises" in this piece of legislation completely knocks on the head any necessity for including the word "places". According to Section 7, "premises' includes any place". There it is. It could not be stronger.
I turn now to another more recent piece of legislation that is fairly relevant to the Bill. I have not sought to find any definition of "premises" that is irrelevant to the Bill. If I had, I should be here all day. It is not my wish to address the House all day on this subject. I want to be fairly short.
Section 39(1) of the Trade Descriptions Act 1968 provides:'premises' includes any place and any stall, vehicle, ship or aircraft".I hope that my hon. Friend the Member for Ayr is taking account of these definitions. He wants to insert the word "places". I underline that all places are premises and all premises arc places.
§ Mr. Lipton
One noble Lord in the other place was very puzzled. He wanted to know whether the provisions covered aircraft, trains and oil rigs. He was left in a state of great uncertainty.
§ Mr. Body
I do not think, with respect to noble Peers in the other place, that they did very much homework on this legislation. It is evident from the original Committee stage that they waffled on and took a lot of time over it, but they were not very decisive. It was not until they reached the dreadful Report stage that they realised that they had made a muck of it and started making one amendment after another. It is obvious from reading the Official Report that they did not know whether they were coming or going. At one stage, there being so many amendments, the Deputy Chairman in the other place started putting the wrong amendments. That may be why we are struggling to put the Bill right. There was a tremendous amount of chaos on Report in the other place.
I should now like to dip into antiquity, but only into the last century, to discover what is meant by the word "premises". One cannot have better authority, if one 1019 is to consider how the word "premises" has been interpreted in the courts, than Lord Chief Justice Wilde. In the case of Hemmings v. Willetts in 1849, he said:The word 'premises' is commonly used as comprising land and houses and other matters.Any lawyer knows that that embraces everything. It must do. That obiter dictum of Lord Chief Justice Wilde may not be binding on Scottish courts, but the Under-Secretary knows that it has a persuasive effect.
I submit that is would persuade any court in Scotland that "premises" are so defined. Indeed, if one were to seek other persuasive authorities, as lawyers use the term, one can canter round all the countries—
§ Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
Order. I am following with great interest the argument being put forward by the hon. Gentleman. I understand that the word "place" is the word to which he should be addressing his argument. The word "premises" is already in the Bill.
§ Mr. Body
I am trying to explain that it is unnecessary to insert the word "place" because the word "premises" governs the word "place".
I shall make one more quotation, which I hope will be the last, to try to convince my hon. Friend the Member for Ayr that it is unnecessary to include this change. I need not stress that Commonwealth authorities have a persuasive effect on the courts of this land.
§ Mr. Fairbairn
Before my hon. Friend quotes that case does he appreciate that Volume 4 of Stroud's Judicial Dictionary, fourth edition, published by Sweet and Maxwell in London in 1974, defines the word "place"? The definition is 42 pages long and I shall refer to it in more detail a little later:The word 'place' is generally found in conjunction with other words, such as 'the other place', which give it a colour, and is usually controlled by its context.My hon. Friend might like to consider how this is controlled by its context and what colour it is in the terms of the legislation.
§ Mr. Body
My hon. and learned Friend from Scotland has given me a lesson in 1020 succinctness. That is one of the most important arguments I have heard on this matter, and I hope, that he will enlarge on it if that becomes necessary. One can only hope that my hon. Friend the Member for Ayr will be persuaded long before that. If that does not happen, it may be necessary to go through all those weighty definitions and authorities. So far I have quoted only a few and I have not made very much progress. However, I detect a little doubt on the faces of the Minister and others.
I turn to the New Zealand authority, which refers to the word "place" in the context of "premises". It is the case of Alloway in 1916 when Mr. Justice Edwards said:The words 'the premises of a man engaged in business' signify the place in which he carries on his business.I hope that that quotation is persuasive authority, because it carries great weight.
I do not want to repeat myself, but I insist that the word "place" in the Bill is unnecessary, will spoil the Bill, and perhaps will be an encouragement to others who propose to introduce legislation to slip this kind of language into their Bills. That would be an undesirable course.
If those who introduced this Bill are concerned about the word "premises" and feel that it is vague enough and that the kind of authorities that I have quoted are not good enough, the proper course is to have a definition clause in the Bill to define "premises". Perhaps that is the proper way of going about the matter, instead of slipping in this proposal as an afterthought in the other place by sweeping up the "ifs" and "buts", as one Peer put it.
§ Mr. Fairbairn
Does my hon. Friend appreciate that if the word "place" means anything different from "premises" or "vehicle", the word "place" would cover the sale of home-made lemon curd at a Salvation Army charity jumble sale? I do not know whether the Bill is intended to cover such sales, but, if it does, it has serious implications.
§ 12.45 p.m.
§ Mr. Body
I am sure that my hon. Friend the Member for Ayr had that example in mind when he was considering the Bill. I am surprised that he did not refer to Salvation Army charity 1021 jumble sales. Surely the Salvation Army cannot operate except on premises. The word "premises" has been defined over and again, not only in legislation dealing with this kind of matter involving common law but in criminal law. "Premises" is a phrase used frequently in the criminal courts in cases involving house-breaking and the committing of crimes on the premises of other people.
I have in mind the case of the Queen v. Lushaba in 1956 when the defendant was found guilty of entering premises with intent to commit a crime when all he had done was to enter a yard, a public place between houses, and throw a brick through the window to break into a house Having broken the window, he panicked and ran away, but when apprehended he was still found to be on the premises of that house, although it was not enclosed in any way. It was simply a yard which any member of the public could enter.
I hope that my hon. Friend will think carefully before slipping into accepting any word or phrase that will cause difficulty. I have no doubt he will get this Bill, but he must consider his responsibilities in putting on the statute book a Bill that will contain—such a defect. Certainly the Bill will be all the better without the inclusion of the word "place".
§ Mr. Fairbairn
As a distinguished member of the English Bar, my hon. Friend will be aware of the case entitled Powell v. Kempton Park Company, reported in 1889 Appeal Cases, at page 194, where the esteemed judgment of Lord James related to a matter that would interest the hon. Member for Bethnal Green and Bow (Mr. Mikardo). The question related to whether the definition of the word "place'' in regard to betting could cover a situation in which the Member for Bethnal Green and Bow and myself met on Salisbury Plain to exchange our illegal contract. Lord James said that in general terms the word "place" mentioned in legislation must be to some extent ejusdem generis with the words that qualified it. However, he did not think that it possessed characteristics sufficient to enable it to have a separate meaning from the words that qualified it.
Clearly, in this case "premises" or "vehicle" is the qualifying word. I 1022 should not have thought that a vehicle or premises formed a category that was idem genus. If it does not form such a category, it means nothing—and if it does, it means the same.
§ Mr. Body
If my hon. Friend can give, by a nod or a wink, the impression that he will think again about the word "place", I am sure that we shall make progress. Of course, we still have other amendments to discuss. He took us by surprise by grouping Amendment No. 1 with Nos. 2 and 4 to 15. I do not propose to speak on them all, but only on their relationship to the word "place". No doubt I shall seek to intervene when we deal with some of the other amendments. I have grave misgivings about some of the other amendments, particularly the references to exempting the Crown and the powers given to the Secretary of State under Clause 8.
§ Mr. Deputy Speaker
Order. Perhaps the hon. Gentleman would reserve his observations on that important matter until it arises.
§ Mr. Body
I shall indeed do so. I realise that other hon. Members are seeking to catch your eye, Mr. Deputy Speaker, and it would be discourteous to them if I were to seek to pursue these points further. I know that other hon. Members are anxious to do their utmost to persuade the House that the Lords amendments should not be allowed.
§ Mr. Mikardo
I join with my hon. Friend the Member for Fife, Central (Mr. Hamilton) in thanking the hon. Member for Ayr (Mr. Younger) for introducing the measure and for the work that he has put into it. The cause of raising standards of sanitation and hygiene generally, particularly involving the preparation, handling, serving and transport of food, is one from which no hon. Member would dream of dissenting for a moment. I am quite sure that after we have completed our examination of a few words in the measure the voices that will give assent to the Bill on Third Reading will be loud, enthusiastic and will include mine.
As I suggested earlier, I like to have a look at the language of statutes from a non-legal point of view. Of course, I realise that what I think about these things does not carry the authority of the opinions of hon. and learned Members. However, the chap who may lose his livelihood or have it interrupted for a period of time—perhaps quite properly —will probably not be a lawyer, either.
If a chap is told that if he does not do a particular thing he will be proceeded against under this measure, the first thing that he will do will be to nip along to the Stationery Office to get a copy of the legislation. That places an obligation upon us to avoid ambiguity as far as possible.
§ Mr. Fairbairn
There is a particular reason for avoiding ambiguity in this measure that I am sure the hon. Gentleman will appreciate. Unlike most statutes, under this one the opinion of a totally unqualified official of the local authority on oath to the sheriff that the measure should be interpreted in a particular way will justify an order that would deprive a man of his livelihood. It will be the man on top of the Clapham omnibus who will he the expert in the interpretation of the law.
§ Mr. Mikardo:
I am grateful to the hon. and learned Gentleman. When I read the part of the measure that refers to an officer of the local authority virtually having the power to shut a place down I was extremely worried, because I do not like officials having such powers. However, we can deal with that in more detail later. There would be a special case if, for example, a particular stall 1024 would otherwise go on selling poisoned meat pies and creating illness among many people. There is a case for emergency action by methods that we should not want to apply normally.
I return to the chap who was going to the Stationery Office. This creates an obligation upon us all, lawyers and laymen, as far as possible within the limits of avoiding ambiguity, the need for clarity and the desirability of not providing extra and unnecessary work of interpretation for the courts, to write our statutes in a way that is reasonably comprehensible to the ordinary man.
I hope that when the hon. Member for Ayr replies to the debate he will not use the argument that I have heard used on so many occasions since coming into the House a little more than 30 years ago. It has been used when similar points have been raised about Private and Public Bills—big'uns as well as little'uns. The argument is that it may be that a word is redundant and that the other words cover all the contingencies, but it does not do any harm to leave the word in anyway, so it might as well be left. That is what an hon. Member referred to earlier when he quoted the phrase "sweeping it up", which was used in another place. That has absolutely no justification at all.
§ Mr. Fairbairn
This is an important argument, particularly when one considers the extent of the meaning of the word "premises". The definition of that word is found in 43 pages of Stroud's Judicial Dictionary, fourth volume. This point is also covered by the judgment in the case of Gardner against Sevenoaks Rural District Council 1952 which can be found in the All-England Law Reports, page 84. That case would be considered as an authority in Scotland because it has the authority of a decision in the House of Lords.
In that case the word "premises" was considered even in relation to its consequences with regard to deeds, writs or other pieces of paper. The word "premises" could cover the Morning Star if a food business sold fish and chips in an edition of that paper. If a copy of that paper or even the Tribune was used for such a common purpose, and if the word "premises" covers such a generality of good journals, surely it is not necessary to add the word "place ', which would 1025 not cover the Morning Star or the Tribune.
§ Mr. Mikardo
I. am grateful, as always, to the hon. and learned Gentleman, who never makes an intervention without adding to our knowledge. On this occasion the hon and learned Gentleman was talking about something of which I have practical experience, because in the course of my life I have on numerous occasions eaten fish and chips out of various publications. I must say that I had a small twinge of regret when that was made illegal. The hon. and learned Gentleman will know that it is no longer legal to sell fish and chips bang on to the paper, so that now one cannot read last Thursday week's cricket matches in between the smears of vinegar. Since that was rendered illegal and now that by law some intermediate covering must be put between the chips and the newspaper, the chips do not taste nearly as good. Any regular devotee of this classic British dish will confirm what I am saying without hesitation.
§ Mr. Body
I remember the occasion during the war when the hon. Member for Bethnal Green and Bow (Mr. Mikardo) and I repaired to a fish and chip shop and had fish and chips wrapped in the Daily Express. I recall that the hon. Gentleman said that that was the best purpose to which one could put the Daily Express.
§ 1.0 p.m.
§ Mr. Mikardo
I had better not pursue that point or I shall incur your displeasure, Mr. Deputy Speaker, and I never wish to do that.
When I saw the amendment, I wondered what could be meant by "place" other than "premises", "vehicle" or "stall". I was aware of the example of a pavement café that was quoted in another place. There is such a café across the road on the Victoria Embankment and it is a very pleasant place. It is on a piece of pavement that presumably belongs to the premises and is therefore part of the premises.
The hon. Members who have given a number of legal references have demonstrated that the fact that the café has no roof does not stop it being part of the premises. If someone used part of a pavement that he was not entitled to use because it was not part of his premises 1026 but was part of the public footpath, we should not need this or any other legislation to deal with the problem. The local authority could sweep him up whether his food was hygienic or not.
I considered how food could be served other than from a stall, premises or a vehicle. 1 asked earlier whether there was a statutory definition of "stall". To me it is something providing a horizontal surface on which goods arc placed for the purpose of selling them. It could be a trestle table—as it often is in open-air markets—a barrow with a flat piece of wood on the top, an ordinary table, a collapsible card table, a tea chest, a crate, or a platform.
If "place" means anything other than "premises", "vehicle" or "stall", it must relate to a person selling food off the pavement. If someone is selling food off the pavement, the problem arises how one puts a closure order on a piece of pavement. Such an order would have to refer to that section of the pavement of Oxford Street on the north side of the street spreading 1.5 metres from the building line and beginning at a point 122 metres and ending at a point 126.3 metres from the west side of Duke Street.
§ Mr. Body
It is even more ludicrous. The hon. Gentleman will appreciate that prosecutions under the Act are to be brought by the local authority. But the local authority will own the pavement. Consequently, we shall have an astonishing procedure in the peculiar courts that we have heard described. The two parties will be the left and right hand of a local authority. The public health officer will be wagging his finger at the man from the highways department and threatening him because he had permitted Joe Bloggs to open a pavement café that was unhygienic. Bloggs would then start wagging his finger at the public health officer and saying that the landlord was to blame. The whole thing would be a nonsense.
§ Mr. Mikardo
The hon. Gentleman concurs with my view that whatever else place "can mean, it cannot mean selling goods off the pavement or the road. Once they are taken off the pavement or the road, they will be on a stall, unless they are taken on to something mobile, which will be a vehicle, or on to 1027 a public place, which will be premises. All the possibilities are covered.
§ Mr. Body
We must consider this matter very carefully or we shall be letting loose some very stupid legislation. Under the Public Health Act 1875, the definition of "premises" includes messuages, buildings, land, easements and hereditaments of any tenure. If Joe Bloggs, who owns a cafe, acquires an easement on the pavement over a period, that easement is still essentially part of his premises. I hope that the hon. Member for Ayr (Mr. Younger) is noting these points. The word "premises" is perhaps stronger than "place".
§ Mr. Mikardo
I had noted that fact. There are statutory definitions of "premises" that are in such a form that it is clear that they cover anything that might be covered by the word "place". Therefore "place" is a redundancy, tautology, or, maybe, even worse, a pleonasm.
§ Mr. Moate
I hesitate to correct the hon. Gentleman but he said that if someone took food off the pavement, he had to put it on a stall. There is another possibility. He could sell it from a horizontal platform that was not a stall because it was suspended round his neck. He could be conducting a food business from a place and that place could be a whole town if the man were an itinerant salesman of, for example, chewing gum, which is defined as a food in the Food and Drugs Act.
It could be that, by accident or design, another place is proposing to extend the Act to cover the businesses of a whole range of people who are not aware that they may face prosecution.
§ Mr. Mikardo
I must confess to not being familiar with the obiter dicta of Lord Chief Justices of more than a century ago, but the the hon. Member for Faversham (Mr. Moate) conjures up a fascinating picture of a man with a chain 1028 round his neck selling three fried cods and four portions of chips from a little platform resting on his belly. On what would one serve a closure order? How does one define the place for the purpose of making the closure order?
On my way to the House this morning I went into Church Street Market. It is not very far from where I live. My wife and I often go shopping there—at least, she does the shopping and I am the beast of burden. It is a very large and busy market, and a very good one. It has some excellent shopkeepers, stallholders and market traders. This morning I walked from one end of that market to the other.
The ingenious chaps who sell goods in this market have all sorts of bright ideas and good ways of selling their stuff. I looked at every transaction that was taking place. It took me quite some time. I asked myself what there was there that was not a vehicle, not premises and not a stall. From the Edgware Road end of Church Street to the Lisson Grove end, going down one side and up the other, I could not find any transactions going on that could be described as taking place other than in premises, from a vehicle, or off a stall. Therefore, I am inclined to share the desire of the hon. Member for Holland with Boston (Mr. Body) that we should not put provisions in Bills for the sake of putting them in. We should not put in phrases that are sloppy.
As has been said by every contributor to the debate, we all applaud the Bill and approve of it warmly. That is why we all want the Bill to be as good as it can possibly be. On those grounds I hope that the hon. Member for Ayr, to whom I again express my gratitude for the work that he has put into this cause, will be good enough to have second thoughts.
§ Mr. Moate
I agree with all those who have paid tribute to my hon. Friend the Member for Ayr (Mr. Younger) for introducing what must be in principle a very desirable measure. I share the view of the hon. Member for Bethnal Green and Bow (Mr. Mikardo) that there could hardly be any hon. Member who would not give all support in principle to my hon. Friend in endeavouring to give greater strength to the autorities to enable 1029 them to prevent the sale of contaminated food that might be endangering the wellbeing of the people of the United Kingdom, and in this case the people of Scotland. Therefore, my hon. Friend certainly has my support on the general principle. Any comments that I make on the amendment are made only in accordance with the desire to see that the Bill leaves this place in as good a form as possible and is totally effective.
I find myself initialy in some confusion. Originally I shared the views of the hon. Member for Fife, Central (Mr. Hamilton), who thought that it was a little undesirable that all the earlier stages of the Bill—I am relating this comment specifically to the amendment —should have proceeded without a single word being uttered by my hon. Friend the Member for Ayr. I thought that there was some cause for congratulations to my hon. Friend on the fact that the Bill had gone through Second Reading, Committee and Report stages and Third Reading without his uttering a word.
The hon. Member for Fife, Central, taking advantage of the opportunity afforded by the amendment, thought it right this afternoon that we should be giving further consideration to the Bill and should not leave it entirely to their Lordships.
On the other hand, my hon. Friend the Member for Holland with Boston (Mr. Body) then put a different angle on the subject. He said that without a single word having been uttered in this place, the Bill left this place in perfect form, and that it was only when their Lordships started to make amendments that the Bill began to deteriorate. Therefore, we see ourselves now in the position of the revising chamber, trying to correct some of the errors created in another place.
§ Mr. Moate
I was wishing to concentrate on the merits of the amendments that the other place has produced. Pre- 1030 sumably, Mr. Deputy Speaker, that is not only in order but is the object of our deliberations today.
I am in something of a dilemma. However, my hon. Friend the Member for Ayr deserves congratulations not only on having got so far with his Bill but on having done so with hardly a spoken word. I think that he has been trying to emulate some of his ancestors. I believe that there was Scottish Parliament that sat in Glasgow in about 1662.
§ Mr. Deputy Speaker
I was hoping that the hon. Gentleman would let it pass, because it has nothing to do with the amendment.
§ Mr. Deputy Speaker
Perhaps the hon. Member would be good enough to proceed with the amendment. There appear to be many important matters to be discussed in relation to the Bill.
§ 1.15 p.m.
§ Mr. Moate
I shall deal with the question of the Drunken Parliament at Glasgow in 1662 on a separate occasion. I can satisfy my hon. Friend about the accuracy of the point that I have made.
However, despite what I have said in praise of my hon. Friend, I think that he might have been a little more fulsome today in presenting these amendments to us. We have already had a fairly detailed analysis of the meaning of the word "place" and its relevance to this proposed statute. This amendment is only one of four very significant amendments. Mr. Speaker has grouped for discussion, for the convenience of the House, four amendments. The first group of amendments relates to the question of extending the definition of "premises" to include "place". A further amendment adds the phrase "vehicle or place". Another amendment changes the definition of the activities that can be carried out and brings in the term "a food business". A further amendment, which is of great significance, extends the definition to include the transportation of food.
This is a matter of very considerable importance. The House is quite right to consider each of these amendments in 1031 some detail. They have considerable legal significance. I do not think that we would want a Bill to leave this place or would want amendments from their Lordships House to be passed if it resulted in sloppy or loose legislation. There is ample evidence to show that the amendments are defective in some ways and perhaps undesirable—although obviously we await to hear what my hon. Friend the Member for Ayr has to say when he answers the debate. I know that he is an outstanding authority on these matters and will be able to give us the benefit of his very considerable knowledge on the question of food and drugs legislation applying in Scotland and, indeed, in England.
One of the strong arguments advanced in favour of the Bill was that, broadly, a comparable statute had already been enacted in England.
§ Mr. Deputy Speaker
Order. The hon. Gentleman is dealing with an amendment to the Bill, not the Bill.
§ Mr. Moate
Perhaps you will bear with me, Mr. Deputy Speaker. I was coming to the question of comparability in relation to this amendment and the question of the insertion of the word "place". I think that my hon. Friend would accept the argument that, broadly, he is endeavouring to introduce legislation for Scotland that is comparable to that which has been introduced in England.
What is fairly obvious to me and, indeed, it is one of the arguments that supporters of the Bill have adduced, is that the legislation is working well in England. Therefore, we are entitled to see whether the English legislation has been extended in this way. If it has not, perhaps that is an argument against the inclusion of the word "place" in this Bill. As far as I can see, the English legislation does not include the word "place".
Why is it necessary to extend the Scottish Bill with the words "premises or place", whereas the legislation seems to work perfectly satisfactorily in England on the basis of the word "premises''? In view of the arguments that have been produced, I think that we are entitled to have an answer to that point.
Furthermore, we have argued about the question of the word "place", but there has been no definition of the word 1032 " vehicle". Again, we are entitled to have a much clearer explanation on many of these matters.
My hon. Friend for Holland with Boston quoted someone who had described the object of the amendment as being to sweep in any activities of the food business which are carried on other than at premises, vehicles or stalls. The only example that has been given at any time of the need for the word "place" has been that of a pavement cafe. I have not been convinced by any of the arguments that I have heard in favour of the need to import the word "place" to cover a pavement cafe. It seems to me—I need not elaborate this point at great length, as it has been argued already—that a pavement cafe is using an area of land which is under the control of the local authority. If the local authority wishes to prevent some undesirable food activities, it does not have to use the stop notice power provided for in this legislation. Nor does it even need an enforcement notice to be issued under the previous legislation.
§ Mr. Ernest G. Perry (Battersea, South)
The hon. Gentleman mentioned that the front of the premises would be under the control of the local authority. Does he realise that in London particularly, and probably in Glasgow, there are what are known as forecourts, which do not come under the purview of the local authority but remain under the purview of the owner of the premises?
§ Mr. Moate
The hon. Member is right. I was saying that to the extent that the area of land is pavement, and we are talking about a pavement café, it must be under the control of the local authority, the total control of the local authority. I do not know what arrangements are normally made to secure the right to place tables and chairs and canopies on a pavement, but the local authority retains total control over preventing undesirable food business activities from being carried on on that part.
§ Mr. Body
In case the hon. Member for Battersea, South (Mr. Perry) is slipping into the way of agreeing to these Lords amendments, will my hon. Friend underline and make clear to the hon. Gentleman that if it be a forecourt 1033 attached to the building it must be part of the premises? It is part of the premises of that shop, café or restaurant for rating purposes, for the purposes of the Public Health Act and under all the legislation passed by Parliament.
§ Mr. Moate
That is exactly the point I was coming to. I am even more fortified in the belief that I am right by the point put forward by my hon. Friend the Member for Holland with Boston. Is the hon. Member for Battersea, South aware that in cases where it is not pavement but the forecourt clearly under the ownership of the café proprietor or whoever else is carrying on the food business, it must be within the curtilage of the premises. There is ample legal definition of what that means. I do not think that in the case of a pavement café the argument in favour of the inclusion of the word "place" can have any weight. Yet, significantly, it is the only example that has been put forward.
If we wish to have further evidence, let us look at the Food and Drugs (Scotland) Act 1956, to which I shall refer as the parent statute, although that is obviously the wrong use of the term. We can safely say that this Bill is the offspring of that Act. The definition of "premises" is stated in that Act quite clearly toa building or any part thereof and any forecourts, yards and places of storage"—not place, but places of storage—used in connection therewith.We shall be commenting later on the fact that certain definitions on which this Bill depends are not to be found in the Act, but the definition of "premises" is helpfully there and it emphasises that there is no need for this amendment. One wonders why their Lordships indulged themselves in this way. I hope that my hon. Friend, when he answers, will be able to give us an explanation.
§ Mr. Lipton
If the word "premises" is unnecessary and we rely on the 1956 Act, why do we need additional definitions to be inserted in this Bill?
§ Mr. Moate
I am not sure that the intention is to import a further definition. I do not think that I have grasped the hon. Member's point, but if the meaning of the word is to be changed, definition clauses are needed in this Bill, and definition clauses are not there. I have 1034 been striving hard to think of other examples and the only one I can think of is a picnic place. I cannot even think of businesses that are conducted at picnic places that are not conducted from premises or stalls or by that other category of person that I call the itinerant salesman.
§ Mr. Moate
Surely my hon. Friend will cast his mind back to the days when he was consuming fish and chips from the Daily Express and when he was a regular buyer of ice creams and the like. In this country I presume that the majority of itinerant salesmen, perhaps walking along the sea front, would be selling ice creams. I can remember seeing itinerant salesmen in Italy walking along the beach—those were the days when one could afford holidays in Italy—selling doughnuts. I do not know whether doughnuts are sold in Scotland or what the Scottish equivalent of them is.
§ Mr. Moate
Haggisnuts, perhaps. But by including the wordscarrying on a food businessfrom a place it seems that the Bill is being extended far beyond what is in the English statute and beyond what was originally intended. This requires analysis.
The food and drugs legislation presumably, rightly in my view, must be designed to prevent the sale of bad food or food which could endanger public health and welfare from any source, whether it be from cafés, restaurants, retail shops or itinerant salesmen walking along the sea front selling ice cream or candy floss. How one puts a closure order on the man walking along the sea front, I do not know. It is equally difficult to define what his place of business is, because he could be walking around the whole town. In practice. I would not oppose in principle the exercise of this power. but I think that we are entitled to a much fuller explanation from my hon. Friend the Member for Ayr. It may be that if that is the intention, the Bill becomes defective in other ways.
§ Mr. Body
Let us have one thing quite clear in our minds before we make an 1035 absolute bog of this Bill. My hon. Friend the Member for Faversham (Mr. Moate) quoted earlier the possibility of the itinerant salesman selling ice cream from a tray. But we are concerned about the making of a closure order. Does he think that it will be a suitable weapon in the interests of public hygiene to have a closure order on a tray?
§ Mr Moate
I do not want to disagree with my hon. Friend, but if somebody is walking around the streets of London, Glasgow or Edinburgh selling unhygienic food that could be damaging to the public, I suspect that it must be right—it might already be lawful—to issue an enforcement notice on that individual preventing him from selling those bad wares. The Bill is designed to toughen the enforcement procedure.
§ Mr. Moate
It must be desirable, if an enforcement notice is advisable in the first place, to toughen that procedure and to have stop notices with the rights of closure on an interim basis to prevent the man from carrying on this undesirable activity. That begs the question how one actually does it, whether the Bill seeks to do it and if it does, whether it does so properly. No doubt we shall be told by my hon. Friend exactly the detailed arguments. I am sure that he will advise use. It is difficult to apply a closure order to an individual who is walking around the streets and who might be in one town on one day or in another town on another day.
I want to turn to a rather different point about the other amendment that introduces the wordsvehicle or place or transported on that vehicle".This strikes me as being an amendment of very considerable significance. It is possible to put a stop notice on a café quite easily. It is harder to place a stop notice on an itinerant salesman. It is even harder to place a stop notice on a vehicle that might not only be moving around within Scotland but could be in Scotland on one day and in England on the next—or, indeed, in France.
§ 1.30 p.m.
§ Mr. Moate
I do not think that I know the answer to that question. I am sure that my hon. Friend the Member for Ayr will know it. It is a pity that one has not the time and vast research staff that would be necessary to investigate the many regulations in this country, as well as the EEC regulations, which will have some considerable bearing on the carriage of goods. In other words, even if a vehicle is properly taxed, insured and licensed, there are still food regulations which determine the standards under which goods are carried.
§ Mr. Body
Concerning the intervention of the hon. Member for Battersea, South (Mr. Perry), surely the point is that the vehicle could still be used as if it were taxed and otherwise lawfully in use. The closure order would only be in respect of its use for conveying food, and as a place from which food is sold. Am I not right?
§ Mr. Moate
It has obviously been accepted that to introduce the word "transport" is in order, but I suggest that the use of the wordsor transported on that vehiclein Amendment No. 2 extends the whole scope of the Bill. The Long Title refers toAn Act to prohibit as respects Scotland the sale etc.I do not know what "etc." means in that respect. I have no doubt that there is ample precedent for its use. But I presume that its use in the Long Title is not totally flexible and that it could not, for example, include direct elections. I presume that it is bound by the context in which it appears, which is one of sale. We are concerned here with a Bill dealing with the sale of foodstuffs generally from retail premises, and no doubt manufacture also comes into it, but once we talk about transport we are extending the scope of the Bill.
From Clause 1(1) it appears to be intended that transport should be as an adjunct to a food business. It might be 1037 food transported in an ice cream vehicle, and so on, but the clause says thatif the sheriff is satisfied"—
§ Mr. Moate
I understand, Mr. Deputy Speaker, that we are discussing Amendments Nos. 1, 2, 4, 6 and a number of others. The key point, however, is that Amendment No. 2 reads:Page 1, line 19, leave out 'or vehicle' and insert ',vehicle or place or transported on that vehicle'.I submit that the inclusion of the word "transported" introduces a totally new dimension into the Bill. I hope that observation meets with your approval, Mr. Deputy Speaker, and I shall endeavour to stick very closely to the question of the transport of foodstuffs.
My point is whether the inclusion of these words is to be seen as simply an adjunct to retail sales or to a food business, or whether it includes food transport in the broadest sense of the term. I think it does, because Clause 1(1) reads:if the sheriff is satisfied that—(i) food continues or is likely to continue to be prepared, stored, sold or offered or exposed for sale at those premises or on, at or from that stall or vehicle".It seems to me that the words in Amendment No. 2or transported on that vehicleare a clear alternative to the wordsprepared, stored, sold or offered or exposed for sale",and that my hon. Friend the Member for Ayr, by supporting the amendment, is saying, in effect, that all food transport in connection with any food business is now covered by the Bill. He might say that that is desirable, but it is certainly not clear from the original Food and Drugs (Scotland) Act 1956 that that was intended, nor is it present in the English Act to which reference has so often been made by those who have been supporting the Bill in another place.
If it extends now to the transportation of foodstuffs in the broadest sense, this opens up a whole host of other considerations. What is a food business? Quite clearly, it relates also to farmers. The term "food business" is not defined 1038 in the Bill, and I do not wish to trespass on the time of the House by dealing with a matter which is the subject of another amendment in regard to the definitions. But clearly it seems to me that farming is a food business.
§ Mr. John Farr (Harborough)
Amendment No. 2, to which my hon. Friend has referred, proposes to insert the wordsvehicle or place or transported on that vehicle".This refers back to the "vehicle in line 13 which is being used forthe carrying on of a food business".I should have thought, therefore, that on this narrow point it was improper to discuss the road haulage of foodstuffs in general, because it seems to me, on this very narrow point, to apply only to vehicles which are used for the carrying on of a food business as defined in the Bill and not to vehicles which are solely concerned with carting foodstuffs from one part of the country to another. Perhaps I am wrong.
§ Mr. Moate
I certainly agree that it is unclear. That is an argument against the amendment. My hon. Friend the Member for Ayr would, I think, wish to ensure that the Bill leaves this House in a clear and comprehensive form. I do not think it is in that form at the moment. It could be that the transport of foodstuffs referred to in the Bill is only relevant inasmuch as it relates to the sale of foodstuffs on arrival, in conjuction with the sale of goods from the vehicle or the delivery of foodstuffs to the premises at which they are to be disposed of. If that is the case, it is still very important it discuss the condition under which food is carried.
I submit that on the other point my interpretation is right, and that it would includeor transported in that vehiclein a proper sense, and cover food transport, whether or not it is in conjunction with the storage, selling or offering for sale of those foodstuffs. To that extent, therefore, it would include farming.
1039 I am sure that my hon. Friend is not trying to introduce new controls on farmers in a Bill of this kind. That does not seem to me to be his intention, but if that would be the result, it must be due to sloppy drafting. I do not think that that could be his desire. Perhaps my hon. Friend will tell us whether he accepts that argument. Will he submit to their Lordships, or support a proposal that disagrees with the proposition?
If the Bill is to cover all forms of food transport and all forms of vehicles, how is transportation to be controlled? Surely it would be wrong to have a separate Scottish Bill dealing with these matters. This must be a United Kingdom matter. If we wish to control the conditions in which food is transported from one part of Scotland to another or from one part of England to another, cannot see how we can have separate English or Scottish legislation. I said earlier that a vehicle could be in England one day and in Scotland the next—indeed, a vehicle could come from France and be in Scotland the next day.
That brings me to EEC regulations. There are EEC regulations on the transportation of food.
§ Mr. Moate
Indeed there are. It has been said, for example, that we can no longer eat our fish and chips straight from the newspapers as there has to be an intervening piece of paper. I thought that that was probably the result of an EEC regulation, but I might be doing someone an injustice.
Undoubtedly there are EEC rules. Perhaps that is being slightly inaccurate, because I think that at this stage they are draft proposals on the transportation of foodstuffs. It is desirable for those of us who believe in the rule of law, even if we dislike the Community, to accept such regulations and ensure that at least our own law is compatible with them. Indeed, it is often subservient to them. Compatibility is surely a desire that the hon. Member for Bolsover (Mr. Skinner) would share.
§ Mr. Skinner
Although the hon. Gentleman and I agree on the position of Britain and the Common Market, 1040 namely, that we want to see Britain out of it as quickly as possible, I believe it necessary at all given times, even in respect of the amendment, if it is accepted, and the transportation of foodstuffs from the Continent to Scotland, that we do not accept all that is laid down in draft directives. When we get the opportunity to debate such matters in the House—I am told that we shall have a two-and-a-half-hour debate on Monday on a bundle of directives on energy and other matters—we usually find that the documents that are placed before us are out of date.
The hon. Gentleman talks about making our law compatible with EEC regulations, but do I know whether the proposal or directive to which he refers is in order? Will it last? Has it been superseded? Has it been debated in the House? Has it been accepted by the House? Has it passed through the myriad of different structures? We should not automatically assume that we should adopt a posture of agreement and of upholding the law when we are not sure whether that law has been made, whether it is about to be made, or whether it is in the process of being changed.
If the transportation of food from the Continent is to be covered, I think that the hon. Member for Ayr (Mr. Younger) must look afresh at these matters and come up with some pretty fine answers to convince those of us who have had the opportunity of listening to the hon. Members for Faversham (Mr. Moate) and Holland with Boston (Mr. Body). It seems that those in another place have made a mess of the Bill, or have shown it to be deficient. It is my guess that they have placed some deep holes in it and caused some trouble for the hon. Gentleman. Perhaps he has different views about the other place arising from the mess that it has made of his Bill.
§ Mr. Moate
I am grateful to the hon. Member for his brief intervention. I prefer to stick to the common ground between us rather than to emphasise the differences. As for membership of the Community, I should prefer us not to be in it, but, subject always to the continuing assent of Parliament, we must accept the result of the referendum for the time being.
It is generally desirable to seek common policies as a voluntary objective. 1041 No doubt the hon. Member for Bolsover is a supporter of internationalism. I agree that the greater freedom of trade we can have, the better. We should always strive to achieve common policies if they are acceptable to our country. However, that is rather academic. Whether we like it or not, draft proposals are likely to be imposed upon us. Perhaps that makes voluntary agreement academic.
The fact remains that at some stage the House will be considering a proposal for a Council decision concerning an agreement on the international carriage of perishable foodstuffs and the special equipment to be used for such carriage. The Bill makes no provision in that respect. It cannot dc so because at present the EEC document is a draft proposal. Nevertheless, I am sure that my hon. Friend the Member for Ayr, who is a keen supporter of the Community, and the Under-Secretary of State for Scotland, the hon. Member for Glasgow, Provan (Mr. Brown), who accepts the Community, would not wish to put anything on the statute book that in any way conflicted with regulations that we are likely to accept. Of course, we cannot know precisely whether they will be in conflict. Some of my hon. Friends who are experts on these matters will know, but most of us will not know without a careful scrutiny of food and drug legislation.
Consideration must be given to an enforcement procedure. For example, to issue a stop notice on a vehicle from France transporting food into Scotland could in some way conflict with international obligations. As that form of enforcement is likely to be adopted under the Council's proposal, it is not a minor matter.
The hon. Member for Bolsover expressed concern that many of these proposals become rapidly out of date. The explanatory memorandum of EEC document R/2029/76 refers to the United Nations Economic Commission for Europe publishing an agreement on 1st September 1970 on the international carriage of perishable foodstuffs and the special equipment to be used for such carriage. It refers to an agreement that was signed in 1971. Therefore, we are talking about matters that are five or six years out of date. They still have not come before the House. No doubt when 1042 they are presented to us we shall have little scope for amendment, even though they may be totally out of date.
There is no doubt that the EEC proposals have a considerable bearing on the proposition being put forward by my hon. Friend and their Lordships in another place that we should include the transportation of foodstuffs in the Bill. I do not intend to read the regulations paragraph by paragraph—
§ Mr. Body
It is important that we should ascertain whether the draft directive will make the Bill unnecessary. As my hon. Friend the Member for Faversham (Mr. Moate) knows only too well, Article 189 of the Treaty of Rome provides that the document to which he is referring will become immediately in force if it is passed by the Council, overriding any legislation that this House may pass. We may be wasting our time. We have been discussing the Bill for nearly two hours in trying to lick it into shape, with respect to my hon. Friend the Member for Ayr (Mr. Younger), and to make it slightly better, or at least to put it back to its original state before it was mucked about by those in another place. However, it may be that all our efforts will be of little avail.
§ Mr. Moate
I was about to come to that, because, although it is not my intention to read the whole of this docubecause there is not time and I want to ment paragraph by paragraph, simply touch on more important matters in this memorandum, the point must be made that this is not merely a draft proposal. I hope that I have not misled the House. When I look at the explanatory memorandum prepared by the Department of Transport, I see that it says that this draft Council decision would require member States that have not already done so to ratify the UN agreement by 21st November 1976. It may be, therefore, that this is already in force. Later, under the heading Timetable", it says that for States which have ratified it the 1043 agreement enters into force on 21st November 1976 and that the Council should therefore take a decision on the Commission's proposal by the end of October 1976.
I think that we are entitled to ask for a Minister from the Department of Transport to be here to advise us whether this document has been accepted. I presume that the Minister who is present will be responsible for its Scottish aspects. We are nevertheless talking about a United Kingdom obligation, and it will be hard to proceed with this Bill unless we have some guidance from a Minister from the Department of Transport about whether we are bound as yet by this new EEC regulation on the international carriage of perishable food stuffs.
I do not believe that we should dismiss this matter as being one of minor importance.
§ Mr. Skinner
I do not think that the hon. Member for Faversham (Mr. Moate) should assume that, because he does not know, someone in one of our Ministries will know. I tend to the view that on Common Market matters we cannot take it for granted that someone in one of our Ministries will be able to put his finger on the nub of the problem and say "Yes" or "No". These regulations and directives are flowing in from the Common Market in great numbers and all the time they are being superseded by others.
I think that the hon. Member for Faversham should turn his mind to the possibility that we shall soon be in the dangerous position of having a little clause at the end of each Bill saying:All the foregoing is subject to whatever happens in the Common Market, on whatever date it may happen.We have to turn our attention to the possibility of someone in Brussels doing that and, as a result, pressing us in this House into having this kind of addendum stuck on the bottom of every Bill to the effect that it is subject to all Common Market regulations in the future. I can well see that happening, and what the hon. Member for Faversham has been explaining is that it is possible that this may occur.
1044 We now see a loophole. Along comes the hon. Member for Faversham saying that a certain regulation or directive has some relevance to this Bill, as obviously it has in respect of the transportation part of it which the House of Lords has, foolishly or not foolishly, according to one's point of view, introduced. The hon. Gentleman has been able to show us that the Common Market is interfering once again, and my guess is that, if we are not careful, we may arrive at a position in the future where all British Bills have this little proviso inserted—possibly on each clause or perhaps as an additional schedule—indicating that the Common Market is supreme.
That is why I said earlier that, if we are to assist the hon. Member for Ayr (Mr. Younger) in getting through this Bill, we have to turn our attention also to this superstructure in Brussels, Luxembourg and Strasbourg—the people concerned there are transported as well; it depends which is the sunniest place at any time of the year —and we have to ensure that the Common Market is not in a position to take over, to destroy, or to emasculate any Bill by its directives. If the Common Market is able to introduce orders that we cannot eat British ice cream and that, if we do, we cannot call it ice cream, it will introduce directives of all kinds, some of which we may never discover.
It is clear that the House of Lords had in mind the transportation of food from country to country inside the United Kingdom and from the Common Market. It is a pretty wide area, and it is one which at the end of the day is fundamental to all United Kingdom or Scottish Bills.
§ Mr. Moate
I seldom wish to exceed any statement by the hon. Member for Bolsover. However, on this occasion he has understated the position. It is worse than he says. It is not necessary to add to a Bill of this kind that it is subject to whatever may be done in Brussels. That is already, in many respects, the effect of the law today.
§ Mr. Skinner
I am trying to point out that the House of Lords decided to introduce this small amendment and that it has turned out to be one of mammoth proportions. I agree with the hon. Member for Faversham that to a certain degree the Common Market has taken control of British legislation and that its effects are widespread. But it may be, arising out of our attention being drawn to this matter, that for simplicity's sake —not necessarily for us, but in order to be able to streamline matters more and get them through more quickly—the Establishment here may insert the proviso to which I referred in order to circumvent the possibility of our raising these matters.
§ Mr. Moate
What is relevant to this amendment is this EEC document, and I have studied it closely enough to know what form it would take when it became the law of the land. It might be done by regulation. I suspect that it would be. In that case, it would be directly applicable in the United Kingdom without the need for any further enactment by this House.
If we passed legislataion which was in any way in conflict with these regulations, the regulations would take precedence over our enactments. I have no doubt that in the European Court regulations from Brussels would take precedence over any enactment of ours. To that extent the hon. Member for Bolsover was understating the position somewhat.
If it was a directive, we would have to enact it ourselves in our own form. To that extent, in theory, there is greater control by this House over the form that it takes, although net over its contents. I say "in theory" because even that is very hard to pin down on many occasions.
This proposal is very far reaching and affects the carriage of foodstuffs in Scotland. To demonstrate that let me quote one or two extracts from it. The agreement lays downthat the carriage of chilled or deep frozen foodstuffs and milk products, meat, fish and game between signatory States by rail and road or a combination of the two, must, depending on the case, be carried out using insulated and refrigerated equipment which meets specific standards and conditions.1046 On the fact of it, that is an eminently sensible proposition, although obviously we should like to know the specific standards and conditions. Unless we know those, we cannot know how they relate to the Bill. We cannot know whether the stop notice procedure, which my hon. Friend the Member for Ayr advocates, could be used in accordance with those specific standards and conditions, or whether it could be used in circumstances where more stringent conditions were imposed. We must have some conformity between my hon. Friend's Bill and the international changes which it appears that we are about to accept or have already accepted.
I shall emphasise the point again by quoting from paragraph 3 of the explanatory memorandum:Within the Community the public health conditions under which certain perishable foodstuffs are transported between member States are subjected to the following Community regulations:Council Directive 64/433/ECC of 26 June 1964 on health problems affecting intraCommunity trade in fresh meat".Have we adopted that one and to what extent does it refer to the transportation of food as in the Lords amendments?Council Directive 71/118/EEC of 15th February 1971 on health problems affecting trade in fresh poultry meat…Council Directive 72/462/EEC of 12th December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries".I do not know whether the importation of bovine animals or fresh meat from third countries comes within the definition of food businesses, but I am sure that my hon. Friend the Member for Ayr knows, because he is smiling confidently with the expert knowledge that he has. I am sure that he will tell us precisely how the Bill relates to this matter.
This leads me to the next amendment dealing with the definition of a food business. I believe that we are also discussing Amendment No. 6—in page 2, line 6, leave out from "the" to "and" in line 8 and insertcarrying on of a food business at those premises or on, at or from that stall, vehicle or place".1047 It is rather odd that we do not include the word "transportation" there. Apparently, it applies in the first instance but when we reach this page of the Bill the word "transportation" is left out, which I think is slightly strange.
These words seek to replace the much more precise and helpful phraseprohibit the preparation, storage, sale or offer or exposure for sale".As the Bill is drafted, the present definition seems much more in accordance with the Long Title and much more helpful. The Bill is dealing primarily with the sale of food stuffs and protecting the public from the sale of bad foodstuffs.
§ Mr. Body
Does my hon. Friend accept that the term "food business" is defined for the purposes of the Bill and that the definition is to be found in Regulation 3 of the Food Hygiene (Scotland) Regulations 1959, which states:In these regulations, unless the context otherwise requires, the expression 'food business' means any trade or business consisting of or so much of any trade as consists of the selling, exposure, service, preparation, transport, storage, packaging, wrapping or delivery of food.
§ Mr. Moate
I am most grateful to my hon. Friend for providing a most useful definition In the time available to me I tried to obtain a copy of those regulations. He has obviously been more successful. At a later stage we shall consider whether it is right that we have to look to regulations under an Act to find a definition on which the primary legislation depends. The definition of food business is not in the original Act. It is only in these regulations. I think that that is totally unsatisfactory. Even my hon. Friend the Member for Ayr may be hard put to it to justify that.
§ Mr. Moate
It was for that very reason that I expressed my gratitude to my hon. Friend for having quoted that definition to the House. It is now clear that a food 1048 business is currently defined to include the transport of food, although control over that definition is somewhat reduced by the fact that the definition is contained only in a regulation. Even without Amendment No. 2, apparently, which includes the words "or transported on that vehicle", I believe that the definition clearly includes farmers, and I am sure that we could think of many other examples.
Why is it necessary to insert the words "food business" which is a much broader definition? It would be arguably better for my hon Friend not to move his amendment. By disagreeing with the Lords amendment we should be restricting the Bill to its original purpose, of which the main object is to deal with the sale of foodstuffs. Perhaps my hon. Friend is not giving us the full story. Unless it is the avowed intention of the Bill to deal with the transport of food—it is not clear from the Title and it has not been clear from any of the debates in another place—my hon Friend should enlighten the House on this point I should have thought it was much better to leave the words as they stand:the preparation, storage, sale or offer or exposure for sale".The words "food business" are too wide. They include everything connected with the production and preparation of food in all shapes and forms, and I think that that is going far beyond the intention of this very modest, desirable Bill.
I have tried to put the arguments as succinctly as possible. There are many other matters which we could explore. I hope that my hon. Friend the Member for Ayr will be able to answer all the points of considerable substance that have been raised on this group of amendments.
§ Mr. Farr
I congratulate my hon. Friend the Member for Faversham (Mr. Moate) on what he has said. He has been highlighting some of the difficulties that the amendments from the other place are causing to the Bill. He has dealt in particular with the possible consequences of our membership of the EEC, which is not referred to at all in the Bill. It would be foolhardy to proceed without realising that there is a European context and a European application and that the time spent on the Bill so far 1049 and the time we are spending today could all come to naught in the light of some European documentation.
I wish to refer particularly to the insertion of the word "place" in a number of amendments. I agree with some of the comments that have been made by hon. Members on both sides, but without some form of definition of the word "place" the most utterly ridiculous situations could arise. The hon. Member for Bethnal Green and Bow (Mr. Mikardo) made an amusing speech on this subject when he told us that there was a possibility that a pavement could be construed as a place. As the amendments are phrased ai: the moment it would be far better if the words "or place" were not added in the way proposed. It would have been far better to carry out that intention in another way.
Why not simply say "place" and leave out "stall or vehicle"? They are both places, although one is mobile and the other is removable. Better still, it would have been possible to amend the Bill by saying "a place which is mobile, collapsible or static". That would have had the same effect.
§ Mr. Body
Does my hon. Friend accept that the words "premises", "stall and" vehicle "are defined and that the courts have had little difficulty in interpreting them over the years? "Place" can mean almost anything. The Oxford Dictionary has page after page of meanings of that word. It is objectionable to have in any statute a word that can have so many meanings.
§ Mr. Farr
I agree. It would have been much better if these amendments had not been made in another place, because they have introduced to a Bill which was fairly straight forward, and T think generally acceptable, a measure of unacceptability, confusion and misunderstanding. Some of the ridiculous situations that can arise as a result of the amendments have already been highlighted.
The hon. Member for Bethnal Green and Bow (Mr. Mikardo) spoke of the possibility of using a pavement for the sale of food in Oxford Street. He was not quite right, because this is a Scottish Bill. He should possibly have referred to Princes Street in Edinburgh.
1050 If the amendments are agreed to, "place" could just as well be a field or a zoo. My hon. Friend the Member for Holland with Boston (Mr. Body) referred to picnic places, which are found in many national parks in Scotland and the rest of Britain. There will be no limit to the meaning of "place" unless it is defined in the Bill.
There was a reference to a pavement cafe as a "place". I think of the cafe on the embankment near Westminster Bridge. It was suggested that at a pavement cafe with chairs and tables on the pavement those chairs and tables are part of the premises of the cafe. I accept that, but what is the position when, as often happens now in some parts of the United Kingdom—I am not sure about Scotland —cafes install tables and chairs on squares and roads which are part of newly-formed pedestrian precincts?
What is the position where, as also happens in parts of the United Kingdom, squares are made pedestrian precincts only for certain hours of the day, generally in the evening, so that people may sit out in the street to take refreshment? The square or road is opened up again for normal through-traffic in the morning and the portable trees in tubs are put to one side. The chairs and tables there cannot be construed as part of the premises under subsection (1)(a), and they arc certainly not stalls or vehicles, referred to in subsection (1)(b). Therefore, they would presumably come into the category of "place" if the amendments were agreed to.
§ 2.15 p.m.
§ Mr. Moate
My hon. Friend referred to the pavement café near the House. Is it not significant that the English measure, which would naturally cover those premises, makes no reference to "place"? That means either that in England it is considered right that the word "premises" includes "place" or that it is considered unnecessary to protect the public against what happens in places such as pavement cafés. I cannot believe that it is right to accept that the English should be exposed to such risks and the Scottish not. Therefore, is not that an argument that "premises" is satisfactory in both cases and that "place" is unnecessary?
§ Mr. Farr
I am grateful to my hon. Friend. That is probably the conclusion that most hon. Members are coming to after this discussion.
My hon. Friend gave way to me during his speech on the question how farming would be affected by the amendments. If we add "or place" to "stall or vehicle" in subsection (1)(b), we shall increase the scope of the Bill to an unacceptable degree. That would undoubtedly affect farmers, producers and horticulturists who sell their produce by the roadside, but not from stalls or vehicles and certainly not at their premises. As I saw only the other day, they often stack up a number of cases or crates containing strawberries, cherries or whatever for display to people passing in vehicles. Presumably they would be doing so at a place which would call for the supervision of the Bill. If we agree to the amendments, the consequences could be severe for many people who grow fruit.
In Scotland and the rest of the United Kingdom there is a great seasonal trade in fruit and vegetables. For example, there is now a good trade in strawberries, and later in the year there will be a good trade in cherries in Kent and potatoes in Lincolnshire.
§ Mr. Farr
I accept that my hon. Friend's constituency produces excellent strawberries and bulbs. My point is that there is a big roadside trade in such commodities—in Kent cherries, in certain counties strawberries, and in other counties vegetables —beside the road. If we agree to the amendments, places which are not stalls, vehicles or premises but simply a collection of cases, boxes or baskets of fruit or sacks of vegetables will be subject to control under the Bill.
Producers of all sorts of food—horticulturists in particular—will be in a ridiculous position. For example, hundreds of acres of strawberries now growing in the fields are displayed for sale to the general public. In addition, there are cherry orchards, apple orchards and other places, such as mushroom sheds, where customers can pick their own produce. If we add "and place", all those places where fruit is grown will 1052 be subject to control under the Bill. This will make the whole arrangement completely nonsensical.
§ Mr. Moate
With his considerable knowledge of agriculture and the many regulations bearing on farmers, can my hon. Friend tell us whether there are any other measures whereby enforcement action can be demanded against horticulturists on hygiene grounds in relation to the production of foodstuffs in a field, rather than the subsequent handling and processing of them? This Bill extends the definition of "place" to the field in which the food is produced. This might open a whole new area of legislation and statutory control.
§ Mr. Farr
If these amendments are made and if the word "place" is considered to be a place where food is grown and where customers can help themselves, the ramifications are enormous. My hon. Friend asks what regulations exist now. There are many regulations that are observed by agriculturalists relating to the spraying of growing crops. For example, if crops are consumed with spray on them it can be very damaging, and also damaging to bees. There are many regulations relating to the treatment of animals. One cannot inject animals with certain medicines so many days before slaughter.
At present the range of control is sensible, but if a Bill like this is enacted, a producer, who is displaying for sale food at the point of growth in a field in such a way that it was considered that the food might risk contamination, might be subject to prosecution. This makes a nonsense of the whole measure.
I hope that the amendments will not be accepted. They show little or no thought, and unless the word "place" is defined to our satisfaction, I hope that my hon. Friends will join me in voting against them.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
I regret very much that I was not able to be here to listen to all the learned arguments from the Conservative Benches. I am very intrigued by them and I think that they carry great weight.
I am convinced that these amendments should not be accepted. They throw 1053 very considerable doubts upon the construction of Clause I. I hope that the promoter of the Bill will take this matter seriously and accept that it is not just a case of opposition for opposition's sake.
I understand that objection has been made to the use of the words "vehicle", "situation" and place "and to a combination of all three. I have looked very carefully through the Bill to see whether there was any definition of any of these words. The promoter may say that these are ordinary words used in the ordinary way and that they mean the ordinary meaning that they would normally attract. I do not know whether he has had any experience of the courts in this country—I have riot had experience of the courts in Scotland—but is a judge expected to turn around and say to a litigant" What is a vehicle—is it a barrow?" That is an example of the way in which difficulties may arise in definition.
I believe that the word "place" in this Bill is entirely misconceived. What does it mean? A number of examples have been given of the way in which there may be doubts as to what constitutes a place. If the hon. Member for Ayr (Mr. Younger) accepts these amendments and wants the word "place" inserted, he should put in a definition clause showing what he means by "place", "vehicle" and "situation".
I am rather disturbed about the definition of the word "situation". The proposal in Lords Amendment No. 3 is that we should insert the word "situation". This would mean that the clause would read:the state or situation of the premises, stall or vehicle continues or is likely to continue to be such as gave rise to the said offence".I call upon the promoter to answer these points. They are not niggling points and they must be explained if we are to accept these amendments. I hope that he will deal with them satisfactorily.
§ Mr. Younger
I am deeply touched by the tremendous interest that has been shown by hon. Members on both sides in my Bill. The thought of all those hon. Members cancelling their constituency engagements in order to be here to contribute to my Bill makes me feel very humble. I am grateful for their interest 1054 and for the excellent points they have raised.
I have a great advantage in that I am not a lawyer. Therefore, in answering all the points that I have the advantage of being able to look at the words in the Bill without any preconceived ideas of interpretation. I look at them as an ordinary person would.
I shall give a brief background that will make most of the question fall into place. This Bill is not creating new regulations or widening the scope of the present regulations. It simply ensures that the existing regulations are adequately, efficiently and quickly enforced. With the sole exception of Clause 7, which deals with ships, the Bill does not extend the regulations.
This Bill only becomes effective and bears upon the previous enactment—the Food and Drugs (Scotland) Act of 1956 —in Section 13 where the regulations are laid down. Everything that happens in the Bill—and I hope the House will approve it—happens as a result of that Act and those regulations. Most of the questions that have been raised about interpretation of terms are clearly covered in the regulations.
Everyone who has spoken today has expressed support for the principles in the Bill. None of us wants to see food sold on unhygienic premises or in an unhygienic manner. We are all searching for the same aim, and we are all concerned to see that food is not sold in any form that is unhygienic anywhere.
§ 2.30 p.m.
§ Mr. Weitzman
Whatever the regulations may say, surely the hon. Gentleman agrees that there must be clarity in the legislation so as to avoid litigation. Our objection is that no such clarity exists here or in any regulations that the hon. Gentleman may have followed.
§ Mr. Younger
I entirely agree that we want clarity. I hope to show that we have got clarity in the Bill and that these amendments add to that clarity in a small but worthwhile maner.
The admendments are concerned solely with vehicles and the introduction of the term "place". I shall deal with them one by one.
Vehicles are already covered in a detailed manner in regulations that have 1055 been in force for years. I can answer the point made by my hon. Friend the Member for Faversham (Mr. Moate). There is no extension in the treatment of vehicles. Vehicles have been covered by such legislation—since 1956 anyway—and there is a long section in the regulations and the amendments that covers vehicles in a detailed manner.
I suggest that we should agree to the amendments and have "vehicles" specifically mentioned, because in another place the question was raised whether it would be clear in all cases that vehicles were to be included, because they were not specifically mentioned.
No one has suggested that there is any doubt about the importance of ensuring that food treated, sold or transported as part of a business on a vehicle should be kept in hygienic or satisfactory conditions. We are making it clear that any vehicle, while being used for the transport of food as part of a business, has to conform to the regulations under this legislation. I think that covers the point rightly made as a matter of concern regarding what would happen to the vehicle in question. The question was posed: if a vehicle were under suspicion under the legislation, would it have to stop operating, would it be withdrawn from service on the road, would it affect its road licence and so on? I assure the House that is not affected. The inclusion of the word "vehicle" means that any vehicle carrying or engaged in the selling of food as part of the process of running a food business has to conform to the regulations regarding hygiene, and those regulations specifically lay down in what way vehicles shall be covered in those circumstances.
§ Mr. Body
When this point was first mooted in Committee in the other place, I think I am right in saying that it was stated, on behalf of the Government, that it would be unnecessary to include the word "vehicles". If it were to be included, we might as well go on to include storage and packaging. Does my hon. Friend agree that that argument has any strength? Does he feel that "storage" and "packaging" should be added as well as "vehicle"?
§ Mr. Younger
I do not disagree with that view. I think that the Bill would achieve almost all its purposes if the word "vehicle" were not written in. That is clear from what was said in another place. I agree with the noble Lord, Lord Gray, who was particularly keen that this amendment should be put in, that in future—no one can foresee these things—new kinds of vehicles might be used and that we should make it clear that vehicles as such are included not as a by-product of other provisions.
§ Mr. Weitzman
Does any Act of Parliament or regulation define the word "vehicle"? For example, does it include a barrow? I do not understand why, when the Bill was drafted, paragraph (a) did not stipulate the carrying on of a food business at any insanitary or any premises and why the definition of the word "premises" did not include stall, vehicle or other place. Why was that not done? That would have been a simple way of doing it.
§ Mr. Younger
There are definitions of "vehicle"—a word frequently used—in many enactments, as the hon. and learned Gentleman knows. I do not see any necessity to redefine "vehicle" in this legislation as it is a well-known term used in other legislation. I am satisfied that in the Bill the word "vehicle" means what we think it means. It is perfectly appropriate.
§ Mr. Moate
First. I apologise for having left the Chamber when my hon. Friend began his response. I am sure that he is right that many Acts contain definitions of "vehicle". They are usually different definitions relevant to the specific purposes of those Acts. If my hon. Friend wishes to have an umbrella definition of "vehicle in this Bill, it should be defined.
§ Mr. Younger
It is not for me to make definitions or to interpret Acts. That is for the learned judges or, in this instance, the sheriff or the sheriff principal. It is their job to interpret the legislation. I am concerned to see that vehicles are included. There may be numerous court cases in future where the question "What is a vehicle?" is argued. That is not my task. I am concerned to see that the 1057 word "vehicle" is included. It is then for the courts to interpret it.
§ Mr. Weitzman
The hon. Gentleman said just now—the House should not misunderstand him—that the definition is for the judges. It is not. The definition clause ought to be in the legislation. Judges interpret the law according to the definition in the legislation.
§ Mr. Younger
Of course, but we do not need a definition clause for every term in every Act. There are numerous terms that are common to much legislation. However, they are not redefined in every Act. I appreciate the point that the hon. and learned Gentleman is trying to make. Naturally, I bow to his much superior knowledge of matters of law. However, perhaps he will accept that, as a layman, I have a slightly more simple view of these matters than he. I think that both of us have a place in these matters.
The question "What is a food business?" is well defined in the regulations that have been in force for many years. Regulation 3(1) defines a food business. My hon. Friend the Member for Harborough (Mr. Farr) may be interested to know that Regulation 3(2)(iii) specifically excludes any agricultural activities. Therefore, we do not need to have any concern that farming or agricultural activities will be interfered with in this way.
§ Mr. Younger
There is a big difference between agriculture and horticulture. I have been advised in the past—I am talking not about this legislation, but about previous occasions on which I have met this problem—that normally horticulture would be taken to be included in agriculture although it is often separately mentioned.
Finally, I turn to the use of "place" as well as "premises". My hon. Friend the Member for Holland with Boston (Mr. Body) made quite a bit of the fact that "place" is not used in the English Act. With respect, "place" is in the English Act. For example, in Section 6(1)(b) "place" is used in a perfectly understandable way. In the English Act and, indeed, in the original Scottish Act, I do not think that the use of the word 1058 "place" has been clearly enough defined. Therefore, it is valuable to have it in this legislation.
As for "premises" there are various definitions in different Acts, but what matters is the definition of "premises" in the regulations. I refer to Lords Amendment No. 17, which replaces Clause 6 in the Bill as printed. That amendment redrafts Clause 6 and refers all the expressions in the legislation to the expressions used in the regulations.
There are many definitions of "premises" and "food premises". The regulations describe "premises" as meaninga building or any part thereof and any yards, places of storage used in connection therewith".That brings us to the interesting question of what is a premises and what is not. The question of a pavement cafe; has been dealt with and it has been suggested that the word "place" is needed to describe such concerns. The word "place" has been said to be too wide. But we are talking not about any place but about "a place" where a food business is carried on. Nothing is relevant to this legislation until we have a place where a food business is being carried on. For the Bill to apply at all, it must be a place that is caught by the 1956 Act. Before any issue arises, it must envisage a food hygiene inspector going to the place or premises and deciding whether it comes within the ambit of the Act and whether there is some question of food being sold in a manner that is unhygienic.
§ Mr. Moate
Is my hon. Friend not trying to have it both ways? He referred to the 1956 Act, but that Act contains a definition of "premises" and does not define "a place". The English Act tends to rely for its main purpose on the word "premises". Why is he not content to accept the English example, which is said to work satisfactorily?
§ Mr. Younger
My hon. Friend is very persuasive, but the word "place" is already used in the Scottish Act. The word "place" is used in the regulations related to the 1956 Act. The regulations stateNo food, business shall be carried on in any business, vehicle, stall or place the situation of which would expose food to contamination".Therefore, the word "place" is not new. All that is being suggested by the noble 1059 Lords is that it should be specifically written into the Bill.
The majority of the purposes that I want to see achieved by the Bill could be achieved without the use of the word "place", but their Lordships had a point when they tried to make provision for the small number of cases where the food may be sold in unhygienic conditions where it is not a vehicle, premises or stall. That is the situation we all want to cover because none of us wants to see food sold anywhere that is not hygienic.
We have discussed pavement cafes, and I appreciate that in most cases tables could rest on pavements owned by local authorities. In other cases it may be common ground or a mixture of the two. If this is not specifically stated, it may be possible to argue that this is not part of premises and in that event it may not be covered by the Act and in that way unhygienic food may be sold.
Another example may involve the sale of food at open-air events such as race meetings, point-to-points or fairs. Furthermore, we must have in mind the man who sells ice cream from a tray suspended from his neck. He would not be a stall, or premises or a vehicle. But because he is in a place, he might well be covered. I do not think there is any doubt that "a place" adds a small amount to the Bill and would cover a small number of particular cases which otherwise might be allowed to lead to unhygienic circumstances. Since none of us wants to see that situation, I suggest that we should add this small but worthwhile provision to the Bill.
Finally, I wish to say something about closure orders. How does one close a vehicle? Furthermore, how does one close a person selling ice cream from a tray round his neck? The answer is that the definition of "closure" in the regulations relates to the carrying on of a business. If the person concerned, in what ever circumstances, has an order served upon him under the Act, he would be committing an offence if he continued to sell the food after the notice had been served on him. That is the simple answer.
I am grateful to my hon. Friends for raising these matters and I hope that they 1060 will agree to these amendments so as to make assurance doubly sure. If this legislation goes through, it will not be possible in any place for food that is liable to be contaminated or unhygienic to be sold to the public. That is a desirable aim which we would all support, and I hope that we can agree to the Lords amendments.
§ Question put and agreed to.
§ Lords Amendment No. 2 agreed to.
§ Lords amendment: No. 3, in page 1, line 20, after "state" insert "or situation".
§ Mr. Younger
I beg to move, That this House doth agree with the Lords in the said amendment.
This amendment refers to the state of premises. It is intended to cover the condition, situation or construction of premises, but the amendment was proposed because it is arguable that, although the state of premises might be held to cover condition and construction, it does not necessarily cover the situation.
The amendment seeks to cover the state of affairs that would exist if premises that were satisfactory in all senses were situated in an appalling environment or situation in which they would be liable to cause danger to public health. I hope that the House will agree to the amendment.
§ Mr. Moate
My hon. Friend has presented a succinct and persuasive case. Indeed, one wonders why this expression was not included in the first place. There is logic in stating precisely that the situation of premises is one of the criteria for issuing an enforcement notice and a stop notice. We see in line 9 of the Bill reference topremises or… any premises the condition, situation or construction of which is such that food is exposed to the risk of contamination".Later, in line 20, there is reference tothe state of the premises, stall or vehicle.It could be argued that the state of the premises includes the situation of the premises. I do not think that is satisfactory. The state of premises refers to condition, whereas the situation of such premises is primarily taken to mean the circumstances in the immediate neighbourhood.
I should have thought that in that case the word "situation" would clarify the 1061 position. Simply for the sake of reinforcing the argument of my hon. Friend the Member for Ayr (Mr. Younger), in case others should seek to disagree, I must point out that the corresponding part of the English Act states:by reason of the construction, situation or insanitary condition of the premises or stall".It is on those criteria that a stop notice can be issued. It therefore makes sense to include the word "situation" in the Bill so that a local authority can obtain a stop notice on undesirable activities.
This raises a more interesting and fundamental point because to a certain extent the situation of the premises is not necessarily in the control of the man running the business. We are envisaging the circumstances, presumably, where the neighbouring premises fall into a bad state of repair. There might be a café adjoining a derelict building or a building that has become derelict and infested with rodents through no fault of the café owner. Obviously, the café owner would wish action to be taken to have that objectionable activity removed, but it is not always within his power to ensure that it happens.
I am concerned that a stop notice could be issued on such an individual because of a situation which would seem to be beyond his control. There ought to be some way round this. This is not just an academic point. An individual could be penalised through the action of the local authority behaving properly within the terms of the statute, and he could suffer a grievous loss through the fault of someone else. It seems logical that he should have some defence and recourse, but I have heard nothing from my hon. Friend the Member for Ayr and read nothing in the Bill to indicate that there would be anything that such an individual could do about it.
By including the word "situation" as one of the criteria for the imposition of a stop notice my hon. Friend the Member for Ayr and their Lordships are specifically allowing the closure of premises as a result of the action of a third party. The Bill was previously unclear about this because it referred simply to the state of the premises and that implied that the individual would have a defence against closure because the conditions leading to the issue of the notice were not of his own making. Perhaps my hon. Friend the 1062 Member for Ayr could tell us more about this matter.
We are also entitled to know more about the word "situation". Is there a time factor? If an individual sets up a café in a slum area he is, to a certain extent, partly responsible for the general conditions. If an area is in a poor state of repair and deteriorating, it may be that the local authority must take action against all property in that area because of the general conditions. That might be right, but if an area has been deteriorating it is hard that an individual should be penalised in this way.
§ Mr. Weitzman
Sub-paragraph (ii) says:the state of the premises, stall or vehicle continues or is likely to continue".Why is the word "continue" included there? Why is it not "or could be likely to"? That affects the argument of the hon. Member for Faversham (Mr. Moate).
§ Mr. Moate
There is a problem here with the time factor. I cannot answer the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) now, but perhaps when he contributes to our debate he will bring his considerable legal knowledge and abilities to bear on the matter. One is widening—probably rightly —the scope for a stop notice, and an individual is entitled to know that there is some method open to him whereby he can apply through whatever procedure is provided to say that it is not his fault.
It could be argued that such a person would have some redress in the courts and that a stop notice must be issued because it is undesirable that the public should be able to buy food from a clean café that happens to be next door to an infested derelict house. It can be argued that while one is sorry that an individual will suffer, it is in the public interest that a stop notice should be issued, and that if the individual wished, he could then sue the owner of the neighbouring property. However, presumably if such an individual could take steps against the neighbour the council could have done so to ensure that that person was complying with health and hygiene regulations. Such a position is likely to arise in the precise circumstances where a café owner cannot reach the owner of the neighbouring 1063 premises. That is in the nature of the circumstances that we are discussing.
I hope that my hon. Friend the Member for Ayr can tell us what defence exists for the individual proprietor of a food business against being penalised in such circumstances as I have described. That is a major point of some consequence. I hope that my hon. Friend will be able to satisfy us that it is necessary to extend the word "state" to cover "situation" and, if it is necessary, whether he is satisfied that there is no way of a stop notice being used oppressively.
I use the word "oppressively" with no intent to disparage local authorities. It is often used in that context when referring to stop notices. How can we be sure that a stop notice will not be used oppressively against an individual who, through no fault of his own, may find himself in circumstances that require a stop notice to be issued in the public interest?
§ Mr. Younger
I am pleased to reply to that important point. I must come back to the matter of food being sold in premises that may be considered insanitary. We must all agree that we cannot let that happen and that the Bill is designed to prevent it. We are talking about possibly satisfactory premises being put outwith the law by their situation, by the effect of something that a neighbouring proprietor may do or by the sheer surroundings. We cannot do anything that would enable food to continue to be sold in such unsatisfactory conditions. We are talking about the effect of the measure on the proprietor of the premises selling food. Naturally, I agree that hardship could result in some cases and that it might be extremely unfair on a proprietor who, through no fault of his own, was found to be in breach of the law.
As for criminal proceedings, if the owner of the food premises were prosecuted for committing a breach of the regulations and he could show that it was not due to his fault, there would be a defence open to him.
Clause 4(2) provides that Section 45(2) of the 1956 Act shall apply in relation to proceedings under the Bill as it applies to the 1956 Act. Section 45 of the Food and Drugs (Scotland) Act 1956 provides 1064 for the acquittal of a person who, charged with contravention, is able to satisfy the court that he has used all due diligence to ensure compliance with the requirements and that contravention was attributable to someone else's fault. A defence is available to the operator of food premises who is charged with the contravention of the regulations under criminal law when he can show that he used his best endeavours to comply with the standards in the Bill and that the actions of a third party was responsible for the breach.
§ 3.0 p.m.
§ Mr. Moate
If a stop notice is issued because the circumstances are undesirable, can the person continue to contravene the closure order and be liable to pay a fine of up to £400 on summary conviction or will it be an adequate defence to say that it is not his fault? Does this not make a nonsense of putting in "situation" in the first place?
§ Mr. Younger
No. We are concerned with whether an individual is going to suffer a penalty. It would be a defence to the charge to say that it was not his fault and to demonstrate that it was the fault of a third party. However, that does not prevent the stop notice from being served to prevent the food from being sold.
On the point about the adverse effect on someone's situation because of the premises of a third party producing emissions and so on, there would be recourse in law. The person affected could take action against a neighbouring property that was emitting fumes, polluting the water supply or making such an intolerable noise that the food premises were liable to prosecution. This happens in many cases and affects not only food premises. Many of use have instances in our constituencies of a person moving into premises and starting a noisy or unpleasant new process. We immediately get protests from the neighbours and there is a remedy if a nuisance is being committed.
§ Mr. Anthony Grant (Harrow, Central)
I recollect from my experience of the law that one of the most difficult actions in civil law is one of nuisance or annoyance against an adjoining occupier. It is lengthy and expensive. Is it the case that 1065 a humble stall holder, without many resources, could have the state of his stall made foul by an enormous, rich, adjoining factory emitting fumes and noise and that the procurator-fiscal, with all his powers, could descend upon the small man and issue a stop notice? Would that man's sole redress be a lengthy and expensive civil action against the mammoth factory? If so, I find that disturbing.
§ Mr. Younger
My hon. Friend is right, alas. This happens all over the country all the time. Alt too often, it is an expensive and lengthy business to get remedies at law. My hon. Friend is a lawyer and does not need me to tell him that. But this is the case in respect of all instances of recourse to law. If we could find a way of ensuring that people suffering nuisances from those next door could get the matter settled without lengthy proceedings, I hope that someone will tell me about it because many people in my constituency would be glad to know. The situation outlined by my hon. Friend is no different from that in many other legal matters. We have provided the safeguard which will work perfectly satisfactorily.
§ Mr. Farr
We have heard what my hon. Friend the Member for Ayr (Mr. Younger) has said about the amendment. I think that many of us on both sides of the House are a little worried about the situation in which a small café proprietor, for instance, will find himself if the amendment is made. Indeed, my hon. Friend the Member for Harrow, Central (Mr. Grant) has Indicated the absolute helplessness of a small café proprietor who might be the owner or operator of a premises near a very large industrial factory that emits unpleasant smoke or an unacceptable amount of soot, smut or fumes, or dangerous gases.
It is no argument at all to answer that recourse may be had by such a small person to the courts. Litigation is expensive, and, what is far more important in this case, litigation is time consuming. In the weeks or months during which the case waits in the queues to be heard, a man's business can be put in jeopardy while his premises are closed down because of the direction made to him.
1066 Again, we have the same difficulty with this amendment that we had in relation to the first group of amendments. There is no interpretation of the meaning of the word "situation". My hon. Friend the Member for Ayr explained what is meant in this context under the Bill, and he pointed out that it meant the actual physical situation of the premises in question. However, I should have thought that it would be far better if a definition of the word "situation" had been included in the interpretation clause, Clause 6.
It is a pity that Clause 6 does not include such an interpretation, because, in addition to what is generally recognised as the physical or geographical situation of a building, the word "situation" can also apply to its general condition. One can quite readily describe a building as in a run-down situation or in a run-down condition, so there is a certain amount of uncertainty about the meaning of the word in that respect.
What my hon. Friend has not referred to and what he ought not to ignore entirely, perhaps, is that, thanks to the House accepting the first group of amendments, we are now considering not merely the state or situation of a premises, stall or vehicle but the state or situation of the premises, stall, vehicle or place. This again gives the whole meaning of this part of the clause much greater scope and much greater obscurity and lack of certainty. Again, I am not happy about the position here.
§ Mr. Farr
It could be very unfair on a person who has a small business, for instance, a small café, which is near to some industry which has caused a form of pollution that is unacceptable and over which he has no control. He may be near the River Thames, over which he has no control. In Scotland, he may be near the River Clyde, which may have overflowed its banks, and his premises may be flooded. A small café owner has no control over that sort of event. There are so many ways in which matters and events may be beyond the control of a small trader.
§ Mr. Moate
My hon. Friend's remarks and the remarks that I made earlier are not necessarily to the effect that it is desirable for those small activities to 1067 continue. It might be right for the food business to cease because of the circumstances that my hon. Friend has described. However, is it not regrettable that the individual has no way of seeking compensation or redress, even perhaps from those who have imposed the stop notice?
§ Mr. Farr
I am grateful for that intervention. It is a pity that where a local authority has made such a decision, a requirement is not laid down in the Bill for the local authority, perhaps, to help the person who is so adversely affected, perhaps by providing alternative nearby premises or facilitating his continuance of his business in some other way. In other words, it is a pity that more thought has not been given to the small café owner or proprietor who can be put in a very serious situation in which he has no control over the events which have brought it about.
§ Mr. Weitzman
I have only one short point to put to the proposer of the Bill. I was waiting for him to speak, because I thought he might give a satisfactory answer. The Bill saysthe state of the premises".The word "state" must include "situation". Why on earth does he want to add the words proposed by the other place? They do not make for clarity. If one adds words to an Act of Parliament, it only makes for confusion. In the phrasethe state of the premises",surely the word "state" includes "situation".
§ Mr. Fairbairn
As my hon. Friend the Member for Ayr (Mr. Younger) will appreciate, there is a report which is of immense value and great importance called the Renton Report, which deals with the proper principles of legislation. A specific part of that report deals with the proper way of dealing with Scottish legislation.
One of the benefits of Scots law is that it is terse. Statute law is becoming unnecessarily and increasingly verbose. The more verbose it becomes, the more uncertain it becomes, and that is to be deplored. Therefore, if this statute is to mean anything, and if Clause 1 is to 1068 mean anything, it should be properly drafted.
My hon. Friend the Member for Ayr must agree that if the clause is left as it is, if the sheriff is satisfied that—and I stop there and put in the amendment
- "(i) food continues or is likely to continue to be prepared, stored, sold or offered or exposed for sale at those premises or on, at or from that stall or vehicle; and
- (ii) the state"or situation of the premises…is likely to continue to be such as gave rise to the said offence".I do not know what is meant by the word "situation", although I shall deal with the definition of it so far as the law of England has been able to deal with it. So far the law of Scotland has not found it necessary to define the word "situation".
Having listened to the argument that the hon. Member put in defence of the amendment concerning the word "place", I take the view that he regarded the word "premises" as a place which had a permanent situation. Therefore, to make an amendment in which one requires the sheriff to decide whether heritable property is likely to move from where it is to somewhere else is absurd. Heritable property moves, so far as I know, from one place to another only if sentimental Americans think it reasonable to spend a great deal of money taking down London Bridge and rebuilding it in a desert, or taking down some house which they value and shipping it across the Atlantic. I believe that there are proposals to move Temple Bar, which presumably is a heritable property, from its present situation. I must therefore take care in advancing my argument because at one time the Temple Bar was a premises from which a food business was conducted. I believe it was that peculiar seafood known as whelks. I believe that there used to be whelk stalls around the Temple Bar.
The sheriff has to decide under the Bill, presumably, whether St. Giles Cathedral, around which there used to be luckenbooths, will move, on the principle, no doubt, of the statue of Il Commendotore in "Don Giovanni". It is odd that we should conceive of the sheriff having to consider, before he grants an order, the possibility that heritable premises are 1069 likely to change or move from where they are to somewhere else. If they move from where they are to somewhere else, as was pointed out in the last debate, they may be, under the definition of "premises", under water, if they move at all. It seems to me to be very bad drafting, therefore, to use the word "situation" to cover "premises". Obviously, a stall may move its situation, if one definies the word "situation" purely in terms of where it is sited, but the word "situation" does not alone mean that.
I find it even more difficult, when one moves to "stall or vehicle", to judge how the sheriff is to be able to pass an order which will remove the livelihood of a person—an order which, I think, requires the say-so of two local authority officials, on the application of the procurator fiscal, no less, and against a person who is quite improperly referred to in the clause as the "accused". He is not accused of anything. He is not charged with committing a criminal offence. The position is that someone wishes a stop order to be put on an activity. There is no accusation and, therefore, the use of the word "accused" is incorrect.
I see that my hon. Friend the Member for Ayr is shaking his head. With great respect, in Clause 1 there is not an accusation. It is only in Clause 2 that the process can start, once a person has been accused of an offence under the Food and Drugs (Scotland) Act 1956. There is, therefore, in Clause 1 a grossly improper use of the word "accused".
It would appear that a sheriff, on the say-so of two officials, is to be asked to pass an order, based upon his view of the situation. At the moment I am using the word " situation" as meaning the placement, the site, and when the sheriff is to be asked whether a stall or a vehicle is likely to remain on that site, the position becomes absurd. If a person is selling whelks from a wheelbarrow he has to move it only an inch. If he is selling rotten fish from a caravan to the hon.. Member for Fife, Central (Mr. Hamilton) he has to move the caravan only an inch and the locus and purpose of the sheriff is immediately removed, because there has to be a fresh application in law. The last order would be incompetent, because the "situation" of the wheelbarrow or the caravan—or in- 1070 deed, of the statue of I1 Commendotore in "Don Giovanni"—would have changed.
I know that my hon. Friend the Member for Ayr is not a lawyer, and it is a great loss, if I may say so to the Bar in Scotland that he is not one of our members. It is one of our great benefits that his brother is one of our members. It has been of great benefit to me that he has frequently been my junior, although not in the prosecution of anything so trivial or duplistic as the hon. Gentleman's proposed offence. Indeed, it is not an offence; it is a procedure under Clause 1.
I find it extremely difficult to understand why "situation" is regarded as necessary. I am sure that hon. Members on both sides of the House will have read the debate that took place in another place on the amendment and reason for the inclusion of "situation". It is not clear to me why it was thought necessary, but being a devious Jacobite episcopalian and a Scot, and therefore a sceptic, I read the earlier part of the clause to see whether I could find some justification for a cuckoo normally dwelling in cloudland thinking that the word was necessary.
§ Mr. Martin Flannery (Sheffield, Hillsborough)
Having listened to the hon. and learned Gentleman talking about Temple Bar in situ above the whelk stalls, will he clarify a point of history for me? In the 1715 rebellion were there any Scottish heads above the whelk stalls, or were they all heads such as Derwentwater and English gentlemen from the North? Perhaps the hon. and learned Gentleman, who is a Jacobite and an episcopalian, will tell me that?
§ Mr. Fairbairn
I can enlighten the hon. Gentleman. None other than the important head of the Duke of Argyll was displayed on that monument. The Black Argyll was displayed upon it. In modem times the head of a Duchess of Argyll might be more likely to be impaled upon such a monument, but I must not make these distinctions for fear of perhaps running into trouble with the Sex Discrimination Act. I want to keep my remarks on a cross-party basis.
It appears that those who are convicted of rape are thought suitable for a condign punishment and that those who 1071 break the law in other ways are not. Therefore, it is important to look back at the previous part of the clause to see whether "situation" is justified. The clause states:Where a person is convicted of an offence…the carrying on of a food business on, at or from—I do not know how one carries it "on, at or from" but as a whole prepositions are short so they may be included—…or which is so situated or constructed, or is in such a condition, that the food is exposed to the risk of contamination, then, if the sheriff is satisfied that …".If it is considered that the state of the premises should also include the situation of the premises, why should not the construction and condition of the premises be included? The only justification of "situation" being added to the second condition on which the sheriff has to be satisfied—
§ Mr. Fairbairn
I am obliged to my hon. Friend. I think that my hon. Friend the Member for Ayr, if he has learned nothing else today, will have learned something about the construction of statutes.
In answer to the argument advanced by my hon. Friend the Member for Ayr in defence of the word "place" in the last set of amendments, he should understand that, as the Bill stood, the state of the premises was intended to cover where the premises were situated, how they were constructed, whether they were insanitary, the condition they were in and whether food was exposed to a risk of contamination. If that is what "state" means, what does "situation" mean? If "state" covers all these matters, it can mean anything, whereas, as I understand it, the word "situation" means essentially and primarily where a place is sited.
I now refer to Volume 5 of Stroud's Judicial Dictionary, although I did not manage to exhaust Volume 4. I have the benefit, thanks to the English, of 1072 Stroud's Judicial Dictionary, the Fourth Edition. Since we are a small nation, we in Scotland do not have the benefit of judicial dictionaries. They are extremely useful. I am glad that those who publish Stroud's Judicial Dictionary are not so narrow minded as to include only English judicial definitions in a work which is essentially about the law of England. Sometimes they take the view that it might be helpful to look at what happens in the law of Scotland in the interpretation of words.
In what I am about to say, I do not seek in any way to set up an authority. The only lawyers in Scotland who have any authority must first be dead. Since I am alive, nothing that I ever say will have any authority until my demise, at which time it will take on a validity which I regret hon. Members of this House do not always give it during my passing phase on this earth.
"Situation" is first defined as being "A sufficient description", and then the reader is referred to the case of R. v. Penkridge. The extraordinary feature is that, although the dictionary is produced by Sweet and Maxwell, it does not give any date. For that reason, I do not know whether it is Regina or Rex v. Penkridge. The sovereign is not disclosed. It appears that, unfortunately, the case was heard in a local court and, for some reason, no date is given. I see a reference to "LJMC 132". It must be "Local Justices Magistrates Court", I imagine, but I am subject to the correction of any member of the English Bar.
§ Mrs. Helene Hayman (Welwyn and Hatfield)
Perhaps the initials to which the hon. and learned Gentleman referred would give him some clue to the date if he read them in terms of Roman numerals.
§ Mr. Fairbairn
That is very helpful. That would make it about the year 550. It does not say whether it is AD or BC.
§ 3.30 p.m.
§ Mr. Fairbairn
Unfortunately, I do not think that a table of abbreviations occurs in other than the first volume.
In the case of Penkridge the word "situation" was given as a sufficient description of premises for a licence under the Wine and Beer house Act 1869. It must have been a Victorian case. The identification of premises was adjudged to vary according tothe circumstances of the locality in which the house or shop wasfor the purposes of the Wine and Beer-house Act, so thatif the locality was a little village it would be sufficient to state that it was situated in that village, or, if a small town, enough would generally be done…if the street of that town was given".It is therefore clear from the case of Regina v. Penkridge that, generally speaking "situation" is defined as meaning the place in which a property is situated.
However, I regret that that was contradicted in another important case, that of Soper v. Basingstoke 2CPD 440. I regret to say that once again I am at a loss on the date of the case unless it took place in the year 200 AD or BC. That was a case under the Municipal Elections Act 1875 in which the question arose as to what was the situation of a property. Again, it was held that the word "situation" meant only the place where it stood at the time of the enrolment of the candidate.
You will appreciate, Mr. Speaker, as an ardent reader of the Evening News, which has now been saved, and the Evening Standard, which I believe is also still in current production, that there is a column in those newspapers headed "Situations Vacant". Contrary to popular belief, that is not a list of sites that may be developed by those who wish to build houses. As I understand it, it is an attempt to advertise the fact that there are still opportunities, few though they may be, for the 1½ million or so people who are unfortunate enough not to have a job. Therefore we have to consider 1074 with greater care the concept of the meaning of "situation" in this Bill.
If "situation" means "job" and we use that definition, we must say that the sheriff has to decide that the job of premises or a stall or vehicle continues or is likely to continue to be such as to give rise to the offence. If the vehicle is a motor car, I think it reasonable to say that the job of a motor car is to start when asked to, to stop when asked to, to move when asked to and to stay where it is, unstolen, when it is asked to. I think that that would satisfactorily outline a contract of employment that a reasonable man would put as the first four categories in a job description, having regard to the Contracts of Employment Act and the Employment Protection Act.
§ Mr. Fairbairn
I am not sure whether I am wise enough to understand the implications of that remark.
I think that what I have said would be regarded as the job of a motor car, although there are other jobs that a motor car can do. It may be used for the storing of bombs that may go off on time or prematurely, or may be used for birds to nest in.
How can a sheriff be satisfied that food is prepared in a situation in which the job of the motor car—whether moving or not, starting or not, going, accelerating or stopping—is likely to give rise to the offence? We have some excellent sheriffs in Scotland, and some not so excellent, but it would tax the wisdom of them all to decide that the job of a motor car made it more likely that food would be contaminated.
There was a great Englishman who would be almost unknown were it not for an even greater Scotsman. I refer of course to Dr. Johnson and Mr. Boswell of Auchinlech, which I think is in the constituency of my hon. Friend the Member for Ayr. Boswell, too, was a member of the Scots Bar. When Dr. Johnson inquired of the wife of a Scottish judge whether the family ate oats, he was told that they did. But the wife added "We also feed it to our horses", to which he replied "I am glad you treat your people as well as you treat your horses".
1075 If the job of a motor car is to convey people from one place to another, I do not think that it is reasonable that "situation", in that it also means "job" should be included in the clause. It does not seem to me to be a proper use of the word and it is not one that I would approve of.
The third definition of "situation" in statute is in a vague and metaphoric sense, meaning the state of events. The question "What is the current situation?" is not a question about one's job, as in "Situations Vacant", or one's position, as in "Where is it situated?" It means "What is the current state of events?"
It is unfortunate that the English language is now so misused that a word meaning so many disparate things should be thought by those in another place to be appropriate, in all its manifest meanings, to add to things as disparate as "premises", "stall" and "vehicle". I say that with a feeling of alarm that it is assumed that food can be sold only from premises, stalls or vehicles, because if "stall" and "vehicle" have any special meaning, it is a very restricted meaning. "Premises" has a general meaning and "stall" has a minor meaning, part of which I understand relates to a place where a donkey stands—for example, in the manger at Bethlehem. It will be remembered that the ox and the ass were in a stall. This may be relevant to a later matter when we deal with the Farriers (Registration) (Amendment) Bill. If I may say so without stalling, "stall" covers the sale of food from what I would call a stable, a place where horses or oxen are kept.
On the other hand, "situation", far from being a word of close definition, is one of wide definition. In the well-known case of Carshalton Urban Council v. Burrage which is reported in Chapter 500 of the Law Journal, the word "situation" is defined in this way:If in any situation fronting, adjoining or abutting on any street or public footpath," there was any excavation or bank dangerous to passengers, the same might be ordered to be made safe, the excavation or bank did not need to be absolutely contiguous to the street or footpath if it was sufficiently near thereto to cause danger".So there is another definition of the word "situation".
§ Mr. Flannery
Will the hon. Member agree that the word "situation" can be used in conversation as meaning position? People often say "If you were in my situation". Will the hon. Member agree that this introduces a new area in which confusion can arise?
§ Mr. Fairbairn
I am obliged to the hon. Member. That is the fourth definition of the word "situation". It is also an indication of the sloppy way in which we use language. Legislation is supposed to be absolute and the courts are supposed to define absolutely the meaning of legislation as it reads and not as we think it should be.
What does the phrase "in his situation" mean? Does it mean at his time of life, in his marital status, having his political views, or sharing his satisfaction with his lunch? "Situation" means anything, and, with great respect to my hon. Friend the Member for Ayr, words that mean anything mean nothing.
I see no point in adding nothing to the Bill and therefore it would be inappropriate to pass the amendment. I was taught that something plus nothing is unaffected. I was always in difficulty with my mathematics master because I could never grasp that two times nothing equals nothing. What happens to the poor old two? It was there to begin with, but the indication is that there was nothing there to begin with. Why should the poor old two be altered because it is multiplied by nothing? I could never see the logic in this and was cruelly beaten for it.
§ Mr. Speaker
I am getting a little confused following the hon. and learned Member. Would he tell me his situation now?
§ Mr. Gerry Fowler
I do not often speak on Scottish legislation but I should like to return to the point that I raised briefly in an intervention somewhat earlier in our lengthy debates on this Bill.
I note with regret that the Scottish National Party is not represented here today. Were its Members present, they would note the care with which we examine Scottish legislation in an attempt to make sure that its details are precise and can be applied by the courts.
1077 The penalty specified in this Bill is not appropriate to the effects if the word "situation" is added. If we pass this amendment we shall be agreeing that where an offence has been committed or seems likely to be committed in that the vehicle continues to be in a situation or is likely to continue to be in that situation, the sheriff may apply for a closure order on the vehicle. The proper action in this situation would be to make sure that the vehicle was moved.
It would seem to be Draconian to say that in a situation—I cannot avoid using the word; I apologise—where, after an offence has been committed, a vehicle continues to be in a particular place, a closure order shall be applied. The only redress for the owner of the vehicle is to apply to the local authority. If he moves the vehicle and applies to the local authority, the authority may make an order removing the closure order within 14 days. Merely because the vehicle, in the judgment of the sheriff—who is to check the judgment of the sheriff?—is likely to continue to be in that place or in that situation—we are not told for how long—the trader may find himself put out of business for at least 14 days, even if he moves very rapidly in applying to the local authority.
It would seem appropriate if the hon. Member for Ayr wishes to add the word "situation" to devise another procedure whereby the police, or the sheriff for that matter, prohibit the vehicle from trading in that particular situation. But it would not seem appropriate in those conditions —I am talking not about the state of the vehicle, which may be in a fine state, constructed properly, sanitary and suitable for the sale of food, but about the fact that it is in the wrong situation—to determine that that business must close down.
I hope that the hon. Member for Ayr (Mr. Younger) will take heed of the arguments that have been put forward, albeit at some length, and agree that the amendment should be withdrawn.
§ Question put and agreed to.
§ Mr. Speaker
Unless hon. Members wish to divide on or to challenge any of Lords Amendments Nos. 4 to 15, I 1078 shall put them formally, because they have been discussed.
§ Lords Amendments Nos. 4 to 15 agreed to.